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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 27, 2000
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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AMYLIN PHARMACEUTICALS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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DELAWARE 33-0266089
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
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9373 TOWNE CENTRE DRIVE
SAN DIEGO, CALIFORNIA 92121
(858) 552-2200
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
JOSEPH C. COOK, JR.
CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER
AMYLIN PHARMACEUTICALS, INC.
9373 TOWNE CENTRE DRIVE
SAN DIEGO, CALIFORNIA 92121
(858) 552-2200
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
COPIES TO:
THOMAS A. COLL, ESQ.
COOLEY GODWARD LLP
4365 EXECUTIVE DRIVE, SUITE 1100
SAN DIEGO, CA 92121
(858) 550-6000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM
TITLE OF EACH CLASS AMOUNT PROPOSED MAXIMUM AGGREGATE AMOUNT OF
OF SECURITIES TO BE OFFERING PRICE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED PER SHARE(1) PRICE(1) FEE
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Common Stock, $001 par value....... 8,333,334 $11.5625 $96,354,175 $25,438
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(1) Estimated in accordance with Rule 457(c) of the Securities Act of 1933
solely for the purpose of computing the amount of the registration fee based
on the average of the high and low prices of the Registrant's Common Stock
as reported on the Nasdaq National Market on March 21, 2000.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT THAT SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON
SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), MAY
DETERMINE.
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THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED.
WE MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS
PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND IT IS NOT
SOLICITING AN OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE
OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED MARCH 27, 2000
PROSPECTUS
8,333,334 SHARES
AMYLIN PHARMACEUTICALS, INC.
COMMON STOCK
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We are registering our common stock for resale by the security holders
identified in this prospectus.
For a description of the method of distribution of the resale shares, see
page 17 of this prospectus.
Our common stock is currently traded on the Nasdaq National Market under
the symbol "AMLN." On March 24, 2000, the last reported sales price for our
common stock was $12.75 per share.
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INVESTMENT IN OUR COMMON STOCK INVOLVES A HIGH DEGREE OF RISK.
SEE "RISK FACTORS" BEGINNING ON PAGE 4 OF THIS PROSPECTUS.
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this Prospectus is March , 2000.
<PAGE> 3
OUR BUSINESS
The SEC allows us to "incorporate by reference" information that we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be part of this prospectus, and information that we file later
with the SEC will automatically update and supersede this information. You
should read the following summary together with the more detailed information
regarding our company, our common stock and our financial statements and notes
to those statements appearing elsewhere in this prospectus or incorporated here
by reference.
We are a research and development pharmaceutical company focused on
metabolic disorders and specializing in the identification and development of
drug candidates.
DRUG DEVELOPMENT PROCESS
In order to study the safety and effectiveness of our drug candidates we
first evaluate their physical and chemical properties in laboratory tests,
followed by evaluation of their effects in laboratory animals. If these studies
show promise, following procedures established by the FDA, we begin clinical
trials of drug candidates in humans. In Phase 1 clinical trials, a drug
candidate is given to a small number of healthy volunteers or patients. These
Phase 1 studies examine the safety and the size of dose that humans can take
without a high incidence of side effects.
If the Phase 1 trials do not reveal any major problems, such as
unacceptable toxicity, we can progress to Phase 2 studies. Phase 2 clinical
trials involve giving the drug candidate to patients who have the targeted
condition and typically involve up to several hundred patients. Phase 2 studies
are used to examine safety and the effects of the drug candidate relative to the
disease being treated.
Phase 3 clinical trials involve larger numbers of patients, typically
several hundred to several thousand patients and typically are of longer
duration than Phase 2 clinical trials. Typically, if the Phase 3 of clinical
trials produce acceptable results, all clinical trial data is examined and
included in a new drug application submitted to FDA. If the FDA approves a new
drug application, the new medicine becomes available for physicians to
prescribe.
OUR DRUG CANDIDATES
SYMLIN. We are developing SYMLIN(TM)(pramlintide acetate) for the treatment
of people with type 1 diabetes and people with type 2 diabetes who use insulin.
SYMLIN is a synthetic analog of the human hormone amylin. We have also completed
over 30 Phase 1 and Phase 2 studies of SYMLIN involving over 1,400 participants,
including people with either type 1 diabetes or type 2 diabetes who use insulin.
We have also reported the results of six Phase 3 studies of SYMLIN (two in type
1 diabetes in the US, two in type 2 diabetes in the US, one each in type 1 and
type 2 diabetes in Europe/Canada) in which neither the participants nor the
investigators knew who received SYMLIN or placebo, and several studies in which
it was known that all participants received SYMLIN. To date, over 3,500
participants have received SYMLIN in our clinical trials. We plan to submit a
new drug application for SYMLIN in mid-2000.
AC2993. We are currently evaluating AC2993 (synthetic exendin-4) in Phase 2
clinical trials for the treatment of people with type 2 diabetes. To date, over
100 people have received AC2993 in our Phase 1 and Phase 2 clinical studies.
AC3056. We are currently evaluating AC3056 in preclinical laboratory and
animal studies for potential utility in the treatment of metabolic disorders
relating to cardiovascular disease in order to support the initiation of
clinical trials in humans. We are planning to submit an investigational new
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drug application to the FDA in the first half of 2000 which, if accepted, would
allow us to begin Phase 1 clinical trials.
CORPORATE INFORMATION
We were incorporated in Delaware in September 1987. Our executive offices
are currently located at 9373 Towne Centre Drive, San Diego, California 92121,
and our telephone number is (858) 552-2200.
SYMLIN is our trademark. All other brand names or trademarks appearing in
this prospectus are the property of their respective holders.
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RISK FACTORS
Except for the historical information contained or incorporated by
reference, this prospectus (and the information incorporated by reference)
contains forward-looking statements that involve risks and uncertainties. Our
actual results could differ materially from those discussed here or incorporated
by reference. Factors that could cause or contribute to differences in our
actual results include those discussed in the following section, as well as
those discussed elsewhere in this prospectus and in any other documents
incorporated by reference into this prospectus.
Investment in Amylin shares involves a high degree of risk. You should
consider the following discussion of risks as well as other information in this
prospectus before purchasing any Amylin shares. Each of these risk factors could
adversely affect our business, operating results and financial condition, as
well as adversely affect the value of an investment in our common stock.
RESULTS FROM OUR CLINICAL TRIALS MAY NOT BE SUFFICIENT TO OBTAIN REGULATORY
CLEARANCE TO MARKET SYMLIN OR AC2993 IN THE UNITED STATES OR ABROAD ON A TIMELY
BASIS, OR AT ALL.
Our drug candidates are subject to extensive government regulations related
to development, clinical trials, manufacturing and commercialization. The
process of obtaining FDA and other regulatory approvals is costly, time
consuming, uncertain and subject to unanticipated delays. The FDA may refuse to
approve an application for approval of a drug candidate if it believes that
applicable regulatory criteria are not satisfied. The FDA may also require
additional testing for safety and efficacy. Moreover, if the FDA grants
regulatory approval of a product, the approval may be limited to specific
indications or limited with respect to its distribution. Foreign regulatory
authorities may apply similar limitations or may refuse to grant any approval.
The data collected from our clinical trials may not be sufficient to
support approval of SYMLIN or AC2993 by the FDA or any foreign regulatory
authorities. With respect to SYMLIN, the results of our first four Phase 3
clinical studies were not sufficient, standing alone, to support an application
with the FDA for marketing approval. In some of these first four studies, the
statistical requirements agreed in advance with the FDA were not met. However,
the results of the final two Phase 3 clinical studies for SYMLIN that were
reported in August and November 1999 achieved the statistical requirements that
we agreed with the FDA to meet, which, because of additional information
gathered from our prior studies, were slightly different from the requirements
in the four prior studies. We believe that the results of our entire SYMLIN
clinical trial program, including the two most recently completed Phase 3
clinical studies of SYMLIN, should support regulatory approval of SYMLIN.
However, it is possible that the FDA or other regulatory authorities may deem
our SYMLIN clinical trial results insufficient to meet regulatory requirements
for marketing approval or may limit approval for only selected uses.
Manufacturing facilities operated by the third party manufacturers with whom we
contract to manufacture SYMLIN may not pass an FDA preapproval inspection for
SYMLIN. Any failure or delay in obtaining these approvals could prohibit or
delay us from marketing SYMLIN. Consequently, even if we believe that
preclinical and clinical data are sufficient to support regulatory approval for
SYMLIN, the FDA and foreign regulatory authorities may not ultimately approve
SYMLIN for commercial sale in any jurisdiction. If SYMLIN does not meet
applicable regulatory requirements for approval, we may not have the financial
resources to continue research and development of SYMLIN or any of our other
product candidates and we may not be able to generate revenues from the
commercial sale of any of our products.
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DELAYS IN THE CONDUCT OR COMPLETION OF OUR CLINICAL TRIALS OR THE ANALYSIS OF
THE DATA FROM OUR CLINICAL TRIALS MAY RESULT IN DELAYS IN OUR PLANNED FILINGS
FOR REGULATORY APPROVALS, OR ADVERSELY AFFECT OUR ABILITY TO ENTER INTO NEW
COLLABORATIVE ARRANGEMENTS.
We cannot predict whether we will encounter problems with any of our
completed or ongoing clinical studies that will cause us or regulatory
authorities to delay or suspend our ongoing clinical studies or delay the
analysis of data from our completed or ongoing clinical studies. If the results
of our ongoing and planned clinical studies for AC2993 are not available when we
expect or if we encounter any delay in the analysis of our clinical studies for
SYMLIN or AC2993:
- we may delay the submission of our applications for regulatory approval
of SYMLIN with regulatory authorities in North America and Europe;
- we may not have the financial resources to continue research and
development of any of our product candidates; and
- we may not be able to enter into collaborative arrangements relating to
any product subject to delay in regulatory filing.
Any of the following reasons could delay the completion of our ongoing and
future clinical studies:
- delays in enrolling volunteers;
- lower than anticipated retention rate of volunteers in a trial; or
- serious side effects experienced by study participants relating to the
product candidate.
EVEN IF WE OBTAIN INITIAL REGULATORY APPROVAL FOR OUR PRODUCTS, IF WE FAIL TO
COMPLY WITH EXTENSIVE CONTINUING REGULATIONS ENFORCED BY DOMESTIC AND FOREIGN
REGULATORY AUTHORITIES, IT COULD HARM OUR ABILITY TO GENERATE REVENUES AND THE
MARKET PRICE OF OUR STOCK COULD FALL.
Even if we are able to obtain United States regulatory approval for SYMLIN,
the approval will be subject to continual review, and newly discovered or
developed safety issues may result in revocation of the marketing approval.
Moreover, if and when we obtain marketing approval for SYMLIN, the marketing of
the product will be subject to extensive regulatory requirements administered by
the FDA and other regulatory bodies, including adverse event reporting
requirements and the FDA's general prohibition against promoting products for
unapproved uses. The SYMLIN manufacturing facilities are also subject to
continual review and periodic inspection and approval of manufacturing
modifications. Domestic manufacturing facilities are subject to biennial
inspections by the FDA and must comply with the FDA's Good Manufacturing
Practices regulations. In complying with these regulations, manufacturers must
spend funds, time and effort in the areas of production, record keeping,
personnel and quality control to ensure full technical compliance. The FDA
stringently applies regulatory standards for manufacturing. Failure to comply
with any of these postapproval requirements can, among other things, result in
warning letters, product seizures, recalls, fines, injunctions, suspensions or
revocations of marketing licenses, operating restrictions and criminal
prosecutions. Any of these enforcement actions or any unanticipated changes in
existing regulatory requirements or the adoption of new requirements could
adversely affect our ability to market products and generate revenues and thus
adversely affect our ability to continue as a going concern and cause our stock
price to fall.
The manufacturers of SYMLIN also are subject to numerous federal, state and
local laws relating to such matters as safe working conditions, manufacturing
practices, environmental protection, fire hazard control and hazardous substance
disposal. In the future, our manufacturers may incur significant costs to comply
with those laws and regulations which could increase our manufacturing costs and
reduce our ability to operate profitably.
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EXISTING PRICING REGULATIONS AND REIMBURSEMENT LIMITATIONS MAY REDUCE OUR
POTENTIAL PROFITS FROM THE SALE OF OUR PRODUCTS.
The requirements governing product licensing, pricing and reimbursement
vary widely from country to country. Some countries require approval of the sale
price of a drug before it can be marketed. In many countries, the pricing review
period begins after product licensing approval is granted. As a result, we or
our partners may obtain regulatory approval for a product in a particular
country, but then be subject to price regulations that reduce our profits from
the sale of the product. Also, in some foreign markets pricing of prescription
pharmaceuticals is subject to continuing government control even after initial
marketing approval.
Our ability to commercialize our products successfully also will depend in
part on the extent to which reimbursement for the cost of our products and
related treatments will be available from government health administration
authorities, private health insurers and other organizations. Third-party payors
are increasingly challenging the prices charged for medical products and
services. If we succeed in bringing SYMLIN and/or AC2993 to the market, we
cannot assure you that either product will be considered cost effective and that
reimbursement will be available or will be sufficient to allow us to sell SYMLIN
and/or AC2993 on a competitive basis.
WE WILL REQUIRE FUTURE CAPITAL AND ARE UNCERTAIN OF THE AVAILABILITY OR TERMS OF
ADDITIONAL FUNDING. IF FUNDING BECOMES UNAVAILABLE, IS INADEQUATE, OR IS NOT
AVAILABLE ON ACCEPTABLE TERMS, IT MAY ADVERSELY AFFECT THE VALUE OF YOUR SHARES.
We must continue to find sources of capital in order to complete the
development and commercialization of SYMLIN and AC2993. Our future capital
requirements will depend on many factors, including:
- the time and costs involved in obtaining regulatory approvals;
- the costs of manufacturing SYMLIN and AC2993;
- our ability to establish one or more marketing, distribution or other
commercialization arrangements for SYMLIN and AC2993;
- progress with our preclinical studies and clinical studies;
- scientific progress in our other research programs and the magnitude of
these programs;
- the costs involved in preparing, filing, prosecuting, maintaining, and
enforcing patents or defending ourselves against competing technological
and market developments; and
- the potential need to repay outstanding indebtedness.
You should be aware that in the future:
- we may not obtain additional financial resources when necessary or on
terms favorable to us, if at all;
- any available additional financing may not be adequate; and
- we may be required to use financing to repay existing indebtedness to our
current or future creditors, including Johnson & Johnson.
As of December 31, 1999, the total principal and interest due to Johnson &
Johnson was approximately $50.6 million, which is secured by our issued patents
and patent applications relating to amylin, including several that relate to
SYMLIN. In the event we require additional capital and we are unable to obtain
additional financing on acceptable terms, we would not have the financial
resources to continue research and development of SYMLIN, AC2993 or any of our
other product
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candidates and we would curtail or cease our operations, which would adversely
affect the value of your shares.
WE HAVE A HISTORY OF OPERATING LOSSES, ANTICIPATE FUTURE LOSSES, MAY NOT
GENERATE REVENUES FROM PRODUCT SALES AND MAY NEVER BECOME PROFITABLE.
We have experienced significant operating losses since our inception in
1987. As of December 31, 1999, we had an accumulated deficit of approximately
$292 million. We expect to incur significant additional operating losses over
the next several years. We have derived substantially all of our revenues to
date from development funding, fees and milestone payments under collaborative
agreements and from interest income. To date, we have not received any revenues
from product sales. To achieve profitable operations, we, alone or with others,
must successfully develop, manufacture, obtain required regulatory approvals and
market our products. We may not ever become profitable. If we become profitable,
we may not remain profitable.
WE HAVE NOT PREVIOUSLY SOLD, MARKETED OR DISTRIBUTED A PRODUCT, AND OUR ABILITY
TO ENTER INTO THIRD PARTY RELATIONSHIPS IS IMPORTANT TO OUR SUCCESSFUL
DEVELOPMENT AND COMMERCIALIZATION OF PRODUCTS AND POTENTIAL PROFITABILITY.
We have not previously sold, marketed or distributed a product. To market
any of our products, we must obtain access to marketing and sales forces with
technical expertise and with supporting distribution capability. We may need to
enter into marketing and distribution arrangements for SYMLIN and/or AC2993 or
find a corporate partner who can provide support for commercialization of SYMLIN
and/or AC2993. We may not be able to enter into marketing and distribution
arrangements for SYMLIN or AC2993 or find a corporate partner for these drug
candidates. If we do not, or are not able to, enter into a marketing or
distribution arrangement or find a corporate partner who can provide support for
commercialization of SYMLIN and/or AC2993, we may perform some marketing and
distribution activities for these potential drug products. We may not be able to
successfully perform these marketing or distribution activities. Moreover, any
new marketer or distributor or corporate partner for SYMLIN or AC2993 may not
establish adequate sales and distribution capabilities or gain market acceptance
for products, if any.
OUR COMMERCIALIZATION PLANS FOR SYMLIN AND AC2993 ARE DEPENDENT ON THE
PERFORMANCE OF, AND OUR RELATIONSHIPS WITH, THIRD PARTIES THAT PROVIDE US WITH
PRODUCT DEVELOPMENT, CLINICAL AND REGULATORY SUPPLIES AND SERVICES.
We depend to a significant degree on third parties to perform the majority
of product development, clinical and regulatory functions for our product
candidates. In particular, we rely to a significant degree on third parties for
the preparation of our planned regulatory submission for SYMLIN. While we
believe that business relations between us and our third-party suppliers and
service providers have been good, we cannot predict whether third-party
suppliers and service providers will continue to cooperate with us in the
performance of our most important services or functions. Any difficulties or
interruptions of service with our third-party product development, clinical and
regulatory suppliers and service providers could disrupt the development of our
product candidates, the completion of our clinical trials, the manufacture of
our products and delay our filing for regulatory approval of SYMLIN.
WE DO NOT MANUFACTURE OUR OWN PRODUCTS AND MAY NOT BE ABLE TO OBTAIN ADEQUATE
SUPPLIES, WHICH COULD CAUSE DELAYS OR REDUCE PROFIT MARGINS.
The manufacturing of sufficient quantities of new drugs is a time consuming
and complex process. We currently have no facilities for the manufacture of
clinical study or commercial supplies of SYMLIN or AC2993. We currently rely on
third parties to manufacture SYMLIN and AC2993.
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We work with three contract suppliers who have the capabilities for the
commercial manufacture of SYMLIN. We, alone or together with a new corporate
partner, may not be able to make the transition to commercial production. While
we believe that our business relations between us and our contract manufacturers
are good, we cannot predict whether these manufacturers will meet our
requirements for quality, quantity or timeliness for the manufacture of SYMLIN
or AC2993. Therefore, we may not be able to obtain supplies of products on
acceptable terms or in sufficient quantities, if at all. Our dependence on third
parties for the manufacture of products may also reduce our profit margins and
ability to develop and deliver products with sufficient speed.
If any of our existing manufacturers cease to manufacture SYMLIN, we may
need to locate and engage another manufacturer. The cost and time to establish
manufacturing facilities to produce SYMLIN would be substantial. As a result,
using a new manufacturer could delay bringing SYMLIN to market, disrupt our
ability to supply SYMLIN or reduce our profit margins. Any delay or disruption
in the manufacturing of SYMLIN could require us to raise additional funds.
OUR OTHER RESEARCH AND DEVELOPMENT PROGRAMS MAY NOT RESULT IN ADDITIONAL DRUG
CANDIDATES, WHICH COULD REQUIRE THAT WE RAISE ADDITIONAL FUNDS.
Any additional product candidates will require significant research,
development, preclinical and clinical testing, regulatory approval and
commitments of resources before commercialization. We cannot predict whether our
research will lead to the discovery of any additional product candidates that
could generate revenues for us. If we do not develop additional drug candidates,
or if our discovery efforts are delayed, we may have to raise additional funds
to continue our business.
IF WE ARE UNABLE TO OBTAIN NEW PATENTS BASED ON CURRENT PATENT APPLICATIONS OR
FOR FUTURE INVENTIONS, WE MAY NOT BE ABLE TO PREVENT OTHERS FROM USING OUR
INTELLECTUAL PROPERTY.
We own or hold exclusive rights to 28 issued United States patents and
approximately 30 pending United States patent applications. Of these issued
patents and patent applications, we have a total of 11 issued U.S. patents and
nine pending applications that we believe are relevant to the development and
commercialization of SYMLIN and one issued US patent and 12 pending applications
that we believe are relevant to the development and commercialization of AC2993.
We also own or hold exclusive rights to various foreign patent applications that
correspond to issued United States patents or pending United States patent
applications.
Our success will depend in part on our ability to obtain patent protection
for our products and technologies both in the United States and other countries.
We cannot guarantee that any patents will issue from any pending or future
patent applications owned by or licensed to us. Our rights under any issued
patents may not provide us with sufficient protection against competitive
products or otherwise cover commercially valuable products or processes. For
instance, a third party may successfully circumvent our patents. In addition,
because patent applications in the United States are maintained in secrecy until
patents issue and publication of discoveries in the scientific or patent
literature often lag behind actual discoveries, we cannot be sure that the
inventors of subject matter covered by our patents and patent applications were
the first to invent or the first to file patent applications for these
inventions. In the event that a third party has also filed a patent for any of
its inventions, we may have to participate in interference proceedings declared
by the US Patent and Trademark Office to determine priority of invention, which
could result in substantial cost to us, even if the eventual outcome is
favorable to us. Furthermore, we may not have identified all United States and
foreign patents that pose a risk of infringement.
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LITIGATION REGARDING PATENTS AND OTHER PROPRIETARY RIGHTS MAY BE EXPENSIVE,
CAUSE DELAYS IN BRINGING PRODUCTS TO MARKET AND HARM OUR ABILITY TO OPERATE.
Our success will depend in part on our ability to operate without
infringing the proprietary rights of third parties. Legal standards relating to
the validity of patents covering pharmaceutical and biotechnological inventions
and the scope of claims made under these patents are still developing. As a
result, the enforceability of patents is uncertain and involves complex legal
and factual questions. Third parties may challenge or infringe upon existing or
future patents. In the event that a third party challenges a patent, a court may
invalidate the patent or determine that the patent is not enforceable.
Proceedings involving our patents or patent applications or those of others
could result in adverse decisions about:
- the patentability of our inventions and products relating to our drug
candidates; and/or
- the enforceability, validity or scope of protection offered by our
patents relating to our drug candidates.
The manufacture, use or sale of our drug candidates may infringe on the
patent rights of others. If we are unable to avoid infringement of the patent
rights of others, we may be required to seek a license, defend an infringement
action or challenge the validity of the patents in court. Patent litigation is
costly and time consuming. We may not have sufficient resources to bring these
actions to a successful conclusion. In addition, if we do not obtain a license,
develop or obtain non-infringing technology, and fail successfully to defend an
infringement action or to have infringing patents declared invalid, we may:
- incur substantial money damages;
- encounter significant delays in bringing our drug candidates to market;
and/or
- be precluded from participating in the manufacture, use or sale of our
drug candidates or methods of treatment requiring licenses.
CONFIDENTIALITY AGREEMENTS WITH EMPLOYEES AND OTHERS MAY NOT ADEQUATELY PREVENT
DISCLOSURE OF TRADE SECRETS AND OTHER PROPRIETARY INFORMATION.
In order to protect our proprietary technology and processes, we also rely
in part on confidentiality agreements with our corporate partners, employees,
consultants, outside scientific collaborators and sponsored researchers and
other advisors. These agreements may not effectively prevent disclosure of
confidential information and may not provide an adequate remedy in the event of
unauthorized disclosure of confidential information. In addition, others may
independently discover trade secrets and proprietary information. Costly and
time-consuming litigation could be necessary to enforce and determine the scope
of our proprietary rights, and failure to obtain or maintain trade secret
protection could adversely affect our competitive business position.
COMPETITION IN THE BIOTECHNOLOGY AND PHARMACEUTICAL INDUSTRIES MAY RESULT IN
COMPETING PRODUCTS, SUPERIOR MARKETING OF OTHER PRODUCTS AND LOWER REVENUES OR
PROFITS FOR US.
We believe that competition may be intense for all of our product
candidates. Our competitors include multinational pharmaceutical and chemical
companies, specialized biotechnology firms and universities and other research
institutions. A number of our competitors are pursuing the development of novel
pharmaceuticals which target the same diseases that we are targeting, and we
expect that the number of companies seeking to develop products and therapies
for the treatment of diabetes and other metabolic disorders will increase. Many
of our competitors have substantially greater financial, technical and human
resources than we do. In addition, many of these competitors have significantly
greater experience than we do in undertaking preclinical testing and human
clinical studies of new pharmaceutical products and in obtaining regulatory
approvals of human therapeutic
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products. Accordingly, our competitors may succeed in obtaining FDA approval for
products more rapidly than we do and provide those competitors with an advantage
for the marketing of products with similar potential uses. Furthermore, if we
are permitted to commence commercial sales of products, we may also be competing
with respect to manufacturing efficiency and marketing capabilities, areas in
which we have limited or no experience.
Our target patient population for SYMLIN is people with diabetes whose
therapy includes multiple insulin injections daily. AC2993 is currently being
studied for the treatment of type 2 diabetes. Other products are currently in
development or exist in the market that may compete directly with the products
that we are seeking to develop and market. Various products are available to
treat type 2 diabetes, including:
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- sulfonylureas - meglitinides
- metformin - alpha-glucosidase inhibitors
- insulin - thiozolidinediones
</TABLE>
In addition, several companies are developing various approaches to improve
treatments for type 1 and type 2 diabetes. We cannot predict whether our
products, even if successfully tested and developed, will have sufficient
advantages over existing products to cause health care professionals to adopt
them over other products or that our products will offer an economically
feasible alternative to existing products.
WE MAY NOT BE ABLE TO KEEP UP WITH THE RAPID TECHNOLOGICAL CHANGE IN THE
BIOTECHNOLOGY AND PHARMACEUTICAL INDUSTRIES, WHICH COULD MAKE OUR PRODUCTS
OBSOLETE AND REDUCE OUR REVENUES.
Biotechnology and related pharmaceutical technologies have undergone and
continue to be subject to rapid and significant change. Our future will depend
in large part on our ability to maintain a competitive position with respect to
these technologies. Any compounds, products or processes that we develop may
become obsolete before we recover expenses incurred in developing those products
which may require that we raise additional funds to continue our operations.
OUR FUTURE SUCCESS DEPENDS ON OUR ABILITY TO RETAIN OUR CHIEF EXECUTIVE OFFICER
AND OUR SENIOR VICE PRESIDENT OF CLINICAL AFFAIRS AND TO ATTRACT, RETAIN AND
MOTIVATE QUALIFIED PERSONNEL.
We are highly dependent on Joseph C. Cook, Jr., our Chief Executive
Officer, and Orville G. Kolterman, M.D., our Senior Vice President of Clinical
Affairs, and the other principal members of our scientific and management staff,
the loss of whose services might impede the achievement of our research and
development objectives. Recruiting and retaining qualified scientific personnel
to perform research and development work in the future will also be critical to
our success. Although we believe we will be successful in attracting and
retaining skilled and experienced scientific personnel, we may not be able to
attract and retain these personnel on acceptable terms given the competition
between numerous pharmaceutical and biotechnology companies, universities and
other research institutions for experienced scientists and management personnel.
We do not maintain "key person" insurance on any of our employees. In addition,
we rely on consultants and advisors, including scientific and clinical advisors,
to assist us in formulating research and development strategy. Our consultants
and advisors may be employed by employers other than us and may have commitments
to or consulting or advisory contracts with other entities that may limit their
availability to us.
OUR BUSINESS HAS A SUBSTANTIAL RISK OF PRODUCT LIABILITY CLAIMS, AND INSURANCE
MAY BE EXPENSIVE OR UNAVAILABLE.
Our business exposes us to potential product liability risks that are
inherent in the testing, manufacturing and marketing of human therapeutic
products. Product liability claims could result in a recall of products or a
change in the indications for which they may be used. Although we currently
10
<PAGE> 12
have product liability insurance, we cannot assure you that insurance will
provide adequate coverage against potential liabilities. Furthermore, product
liability insurance is becoming increasingly expensive. As a result, we may not
be able to maintain current amounts of insurance coverage, obtain additional
insurance or obtain insurance at a reasonable cost or in sufficient amounts to
protect against losses that could have a material adverse effect on us.
OUR ACTIVITIES INVOLVE THE USE OF HAZARDOUS MATERIALS, WHICH SUBJECT US TO
REGULATION, RELATED COSTS AND DELAYS AND POTENTIAL LIABILITIES.
Our research and development involves the controlled use of hazardous
materials, chemicals and various radioactive compounds. Although we believe that
our safety procedures for handling and disposing of those materials comply with
the standards prescribed by state and federal regulations, the risk of
accidental contamination or injury from these materials cannot be eliminated. If
an accident occurs, we could be held liable for resulting damages, which could
be substantial. We are also subject to numerous environmental, health and
workplace safety laws and regulations, including those governing laboratory
procedures, exposure to blood-borne pathogens and the handling of biohazardous
materials. Additional federal, state and local laws and regulations affecting
our operations may be adopted in the future. We may incur substantial costs to
comply with and substantial fines or penalties if we violate any of these laws
or regulations.
PROVISIONS IN AMYLIN'S CORPORATE CHARTER AND BYLAWS MAY DISCOURAGE TAKE-OVER
ATTEMPTS AND THUS DEPRESS THE MARKET PRICE OF OUR STOCK.
Provisions in Amylin's certificate of incorporation, as amended, may have
the effect of delaying or preventing a change of control or changes in its
management. These provisions include:
- the right of the board of directors to elect a director to fill a vacancy
created by the expansion of the board of directors; and
- the ability of the board of directors to issue, without stockholder
approval, up to 7,375,000 shares of preferred stock with terms set by the
board of directors.
Each of these provisions could discourage potential take-over attempts and
could adversely affect the market price of our common stock.
SUBSTANTIAL FUTURE SALES OF OUR COMMON STOCK BY EXISTING STOCKHOLDERS OR BY US
COULD CAUSE OUR STOCK PRICE TO FALL.
Sales by existing stockholders of a large number of shares of our common
stock in the public market after this offering or the perception that additional
sales could occur could cause the market price of our common stock to drop. As
of March 1, 2000, we had approximately 62.5 million shares of common stock
outstanding, of which approximately 37.9 million are freely tradeable,
approximately 12.6 million may be sold in accordance with Rule 144 and
approximately 12.0 million are currently restricted but may be sold in the
future in accordance with registration statements covering these shares.
Likewise, additional equity financings or other share issuances by us, including
shares issued in connection with strategic alliances, could adversely affect the
market price of our common stock.
SIGNIFICANT VOLATILITY IN THE MARKET PRICE FOR OUR COMMON STOCK COULD EXPOSE US
TO LITIGATION RISK.
The market prices for securities of biopharmaceutical and biotechnology
companies, including our common stock, have historically been highly volatile,
and the market from time to time has experienced significant price and volume
fluctuations that are unrelated to the operating performance of these
biopharmaceutical and biotechnology companies. Given the uncertainty of our
future funding and our planned filing for regulatory approval of SYMLIN, we
expect that we may continue to
11
<PAGE> 13
experience volatility of our stock price throughout 2000. In addition, the
following factors may have a significant effect on the market price of our
common stock:
- announcements of additional clinical study results;
- announcements of determinations by regulatory authorities with respect to
our drug candidates;
- developments in our relationships with current or future collaborative
partners;
- fluctuations in our operating results;
- public concern as to the safety of drugs developed by us;
- technological innovations or new commercial therapeutic products by us or
our competitors;
- developments in patent or other proprietary rights;
- governmental policy or regulation; and
- general market conditions.
Broad market and industry factors may materially adversely affect the
market price of our common stock, regardless of our actual operating
performance. In the past, following periods of volatility in the market price of
a company's securities, securities class-action litigation has often been
instituted against those companies. This type of litigation, if instituted,
could result in substantial costs and a diversion of management's attention and
resources, which would materially adversely affect our business, financial
condition and results of operations.
12
<PAGE> 14
WHERE YOU CAN FIND MORE INFORMATION
THIS PROSPECTUS IS PART OF A REGISTRATION STATEMENT WE FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. YOU SHOULD RELY ONLY ON THE INFORMATION
CONTAINED IN OR INCORPORATED BY REFERENCE IN THIS PROSPECTUS. WE HAVE NOT
AUTHORIZED ANYONE ELSE TO PROVIDE YOU WITH DIFFERENT INFORMATION. WE ARE NOT
MAKING AN OFFER OF THESE SECURITIES IN ANY STATE WHERE THE OFFER IS NOT
PERMITTED. YOU SHOULD NOT ASSUME THAT THE INFORMATION IN THIS PROSPECTUS IS
ACCURATE AS OF ANY DATE OTHER THAN THE DATE PROVIDED ON THE FRONT PAGE OF THIS
PROSPECTUS, REGARDLESS OF THE TIME OF DELIVERY OF THIS PROSPECTUS OR ANY SALE OF
COMMON STOCK.
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. You may read and copy the documents we file at the
SEC's public reference rooms in Washington, D.C., New York, New York and
Chicago, Illinois. You can request copies of these documents by writing to the
SEC and paying a fee for the copying cost. Please call the SEC at 1-800-SEC-0330
for further information on the public reference rooms. Our SEC filings are also
available to the public at no cost from the SEC's website at http://www.sec.gov.
We incorporate by reference the documents listed below, except as
superseded or modified by this registration statement, and any future filings we
will make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the
Securities and Exchange Act of 1934:
1. Annual report on Form 10-K for the fiscal year ended December 31, 1999;
and
2. Notice of Annual Meeting and Proxy Statement for annual meeting of
stockholders held on May 24, 1999.
You may request a copy of these filings at no cost, by writing or
telephoning us at the following address:
Investor Relations
Amylin Pharmaceuticals, Inc.
9373 Towne Centre Drive
San Diego, California 92121
Telephone: (858) 552-2200
13
<PAGE> 15
DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, including the documents that we incorporate by reference,
contains forward-looking statements within the meaning of Section 27A of the
Securities Act and Section 21E of the Exchange Act. Any statements about our
expectations, beliefs, plans, objectives, assumptions or future events or
performance are not historical facts and may be forward-looking. These
statements are often, but not always, made through the use of words or phrases
like "anticipate," "estimate," "plans," "projects," "continuing," "ongoing,"
"expects," "management believes," "the Company believes," "the Company intends,"
"we believe," "we intend" and similar words or phrases. Accordingly, these
statements involve estimates, assumptions and uncertainties which could cause
actual results to differ materially from those expressed in them. Any
forward-looking statements are qualified in their entirety by reference to the
factors discussed throughout this prospectus. Among the key factors that could
cause actual results to differ materially from the forward-looking statements:
- scientific and technological uncertainties regarding our product
candidates;
- risks and uncertainties regarding the adequacy of our clinical trial
processes and whether the results of those clinical trials will be
adequate to support regulatory filings and/or approvals;
- risks associated with timing of filing for regulatory approval of SYMLIN,
and if regulatory approval is received, time to market thereafter;
- our ability to raise additional needed capital or consummate strategic or
corporate partner transactions on favorable terms or at all; and
- dependence on third party service providers and manufacturers of our
products.
Because the risk factors referred to above, as well as the risk factors
beginning on page 4 of this prospectus, could cause actual results or outcomes
to differ materially from those expressed in any forward-looking statements made
by us or on our behalf, you should not place undue reliance on any of those
forward-looking statements. Further, any forward-looking statement speaks only
as of the date on which it is made, and we undertake no obligation to update any
forward-looking statement to reflect events or circumstances after the date on
which the statement is made or to reflect the occurrence of unanticipated
events. New factors emerge from time to time, and it is not possible for us to
predict which factors will arise. In addition, we cannot assess the impact of
each factor on our business or the extent to which any factor, or combination of
factors, may cause actual results to differ materially from those contained in
any forward-looking statements.
14
<PAGE> 16
SECURITY HOLDERS
We are registering for resale certain shares of Amylin common stock held by
the security holders identified below. The following table sets forth:
- the name of the security holders,
- the number and percent of shares of Amylin common stock that the security
holders beneficially owned prior to the offering for resale of any of the
shares of Amylin common stock being registered by this registration
statement,
- the number of shares of Amylin common stock that may be offered for
resale for the account of the security holders pursuant to this
prospectus, and
- the number and percent of shares of Amylin common stock to be held by the
security holders after the offering of the resale shares (assuming all of
the resale shares are sold by the security holders).
This table is prepared based on information supplied to us by the listed
security holders, schedules 13G and Forms 3 and 4, and other public documents
filed with the SEC, and assumes the sale of all of the resale shares. The
applicable percentages of ownership are based on an aggregate of 62,494,222
shares of Amylin common stock issued and outstanding on March 9, 2000, adjusted
as required by rules promulgated by the SEC.
<TABLE>
<CAPTION>
SHARES BENEFICIALLY SHARES BENEFICIALLY
OWNED NUMBER OWNED
PRIOR TO OFFERING OF SHARES AFTER OFFERING
----------------------- BEING ----------------------
SECURITY HOLDERS NUMBER PERCENT(3) OFFERED NUMBER PERCENT(3)
---------------- ---------- ---------- --------- --------- ----------
<S> <C> <C> <C> <C> <C>
Allen Andersson(1)................... 10,357,093 16.6% 1,333,334 9,023,759 14.4%
Donald H. Rumsfeld(2)................ 130,444 * 10,417 120,027 *
Rumsfeld Family Trust................ 114,343 * 10,417 103,926 *
Funds Managed by Deerfield
Partners(3)........................ 2,600,000 4.2% 1,000,000 1,600,000 2.6%
Deltec Asset Management
Corporation........................ 363,400 * 363,400 -- *
Ralph M. D'Annucci................... 50,000 * 50,000 -- *
Funds Managed by Capital Research and
Management Company(4).............. 4,845,833 7.8% 4,845,833 -- *
United Capital Management Inc........ 100,000 * 100,000 -- *
MCP Global Corporation Limited....... 100,000 * 100,000 -- *
Funds Managed by Narragansett Asset
Management LLC(5).................. 83,333 * 83,333 -- *
Funds Managed by Invesco Funds Group,
Inc.(6)............................ 628,000 1.0% 628,000 -- *
Funds Managed by AIM Funds Management
Inc.(7)............................ 122,000 * 122,000 -- *
</TABLE>
- -------------------------
* less than 1%
(1) This amount includes 2,602,779 shares held by Susan Riecken, Mr.
Andersson's spouse.
(2) Includes 10,000 shares which Mr. Rumsfeld has the right to acquire within
60 days after the date of this table pursuant to outstanding options. Also
includes 5,000 shares held by a partnership of which Mr. Rumsfeld is a
general partner. Mr. Rumsfeld disclaims beneficial ownership of those
shares except to the extent of his pecuniary interest in the partnership.
Mr. Rumsfeld is a member of our board of directors.
15
<PAGE> 17
(3) Includes 1,924,000 shares held of record by Deerfield Partners, L.P. and
676,000 shares held of record by Deerfield International Limited.
(4) Includes 3,000,000 shares held of record by Rescueboat & Co., as Custodian
for The Growth Fund of America, Inc., and 1,845,833 shares held of record
by Clipperbay & Co., as Custodian for SMALLCAP World Fund, Inc.
(5) Includes 60,833 shares held of record by Narragansett I, LP and 22,500
shares held of record by Narragansett Offshore, Ltd.
(6) Includes 325,000 shares held of record by Pirate Ship & Co., as Custodian
for Invesco Global Health Sciences Fund, 295,000 shares held of record by
SeaLion & Co., as Custodian for Invesco Health Sciences Fund, and 8,000
shares held of record by Above Anchor & Co., as Custodian for Invesco
VIF -- Health Sciences Fund.
(7) Includes 40,000 shares held of record by Roytor & Co., in Trust for State
Street Trust Co. Canada Fund #ZM 75, as Custodian for AIM Funds Management
Inc., on behalf of AIM Global Health Sciences Class of AIM Global Fund
Inc., and 82,000 shares held of record by Roytor & Co., in Trust for State
Street Trust Co. Canada #KG 56, as Custodian for AIM Funds Management Inc.
on behalf of AIM Global Health Sciences Fund.
16
<PAGE> 18
PLAN OF DISTRIBUTION
The resale shares may be sold from time to time by the security holders in
one or more transactions at:
- fixed prices,
- market prices at the time of sale,
- varying prices determined at the time of sale, or
- negotiated prices.
The security holders may offer their resale shares in one or more of the
following transactions:
- on any national securities exchange or quotation service on which the
Amylin common stock may be listed or quoted at the time of sale,
including the Nasdaq National Market;
- in the over-the-counter market;
- in private transactions;
- through options;
- by pledge to secure debts or other obligations; or
- a combination of any of the above transactions.
The security holders may effect these transactions by selling to or through
one or more broker-dealers, and broker-dealers involved in these transactions
may receive compensation in the form of underwriting discounts, concessions or
commissions from the security holders. The security holders and any
broker-dealers that participate in the distribution may, under certain
circumstances, be deemed to be "underwriters" within the meaning of the
Securities Act, and any commissions received by those broker-dealers and any
profits realized on any resale of the resale shares by them might be deemed to
be underwriting discounts and commissions under the Securities Act.
Under applicable rules and regulations under the Exchange Act, any person
engaged in the distribution of the resale shares may not simultaneously engage
in market making activities with respect to Amylin's common stock for a period
of two business days prior to the commencement of the distribution. In addition
and without limiting the foregoing, the security holders and any other person
participating in a distribution will be subject to applicable provisions of the
Exchange Act and the rules and regulations thereunder, including without
limitation, Regulation M under the Exchange Act, which may limit the timing of
purchases and sales of shares of Amylin common stock by the security holders or
any other person.
We will make copies of this prospectus available to the security holders
and have informed the security holders of the need for delivery of a copy of
this prospectus to each purchaser of the resale shares prior to or at the time
of any sale of the resale shares.
The security holders will pay all underwriting discounts, commissions,
transfer taxes and other expenses associated with the sale of the resale shares
by them. We will pay all costs and expenses associated with the registration of
the resale shares. We estimate that our expenses in connection with this
offering will be approximately $115,438.
17
<PAGE> 19
USE OF PROCEEDS
We will not receive any of the proceeds from the sale of any of the resale
shares by the security holders. All proceeds from the sale of the resale shares
will be for the accounts of the security holders.
LEGAL MATTERS
Cooley Godward LLP, San Diego, California will pass upon the validity of
the issuance of the common stock offered by this prospectus.
EXPERTS
The consolidated financial statements of Amylin Pharmaceuticals, Inc. at
December 31, 1999 and 1998, and for each of the three years in the period ended
December 31, 1999, incorporated by reference in this prospectus and registration
statement have been audited by Ernst & Young LLP, independent auditors, as set
forth in their report incorporated by reference here in, and are incorporated by
reference in reliance upon that report given on the authority of Ernst & Young
LLP as experts in accounting and auditing.
18
<PAGE> 20
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth all expenses payable by the Registrant in
connection with the sale of the common stock being registered. All the amounts
shown are estimates except for the registration fee.
<TABLE>
<S> <C>
SEC Registration Fee........................................ $ 25,438
Legal fees and expenses..................................... $ 75,000
Transfer Agent's Fees....................................... $ 5,000
Accounting fees and expenses................................ $ 10,000
--------
Total..................................................... $115,438
========
</TABLE>
ITEM 15. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
Under Section 145 of the Delaware General Corporation Law, the Registrant
has broad powers to indemnify its directors and officers against liabilities
they may incur in such capacities, including liabilities under the Securities
Act of 1933, as amended (the "Securities Act").
The Registrants Certificate of Incorporation and By-laws include provisions
to (i) eliminate the personal liability of its directors for monetary damages
resulting from breaches of their fiduciary duty to the extent permitted by
Section 102(b)(7) of the General Corporation Law of Delaware (the "Delaware
Law") and (ii) require the Registrant to indemnify its Directors and officers to
the fullest extent permitted by Section 145 of the Delaware Law, including
circumstances in which indemnification is otherwise discretionary. Pursuant to
Section 145 of the Delaware Law, a corporation generally has the power to
indemnify its present and former directors, officers, employees and agents
against expenses incurred by them in connection with any suit to which they are
or are threatened to be made, a party by reason of their serving in such
positions so long as they acted in good faith and in a manner they reasonably
believed to be in or not opposed to, the best interests of the corporation and
with respect to any criminal action, they had no reasonable cause to believe
their conduct was unlawful. The Registrant believes that these provisions are
necessary to attract and retain qualified persons as directors and officers.
These provisions do not eliminate the directors' duty of care, and, in
appropriate circumstances, equitable remedies such as injunctive or other forms
of non-monetary relief will remain available under Delaware Law. In addition,
each director will continue to be subject to liability for breach of the
director's duty of loyalty to the Registrant, for acts or omissions not in good
faith or involving intentional misconduct, for knowing violations of law, for
acts or omissions that the director believes to be contrary to the best
interests of the Registrant or its stockholders, for any transaction from which
the director derived an improper personal benefit, for acts or omissions
involving a reckless disregard for the director's duty to the Registrant or its
stockholders when the director was aware or should have been aware of a risk of
serious injury to the Registrant or its stockholders, for acts or omissions that
constitute an unexcused pattern of inattention that amounts to an abdication of
the director's duty to the Registrant or its stockholders, for improper
transactions between the director and the Registrant and for improper
distributions to stockholders and loans to directors and officers. The provision
also does not affect a director's responsibilities under any other law, such as
the federal securities law or state or federal environmental laws.
The Registrant has entered into indemnity agreements with each of its
directors and executive officers that require the Registrant to indemnify such
persons against expenses, judgments, fines, settlements and other amounts
incurred (including expenses of a derivative action) in connection with any
proceeding, whether actual or threatened, to which any such person may be made a
party by
II-1
<PAGE> 21
reason of the fact that such person is or was a director or an executive officer
of the Registrant or any of its affiliated enterprises, such person acted in
good faith and in a manner such person reasonably believed to be in or not
opposed to the best interests of the Registrant and, with respect to any
criminal proceeding, had no reasonable cause to believe his conduct was
unlawful. The indemnification agreements also set forth certain procedures that
will apply in the event of a claim for indemnification thereunder.
At present, there is no pending litigation or proceeding involving a
director or officer of the Registrant as to which indemnification is being
sought nor is the Registrant aware of any threatened litigation that may result
in claims for indemnification by any officer or director.
The Registrant has an insurance policy covering the officers and directors
of the Registrant with respect to certain liabilities, including liabilities
arising under the Securities Act or otherwise.
ITEM 16. EXHIBITS
(a) Exhibits.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
------- -----------------------
<C> <S>
3.1 Registrant's Amended and Restated Certificate of
Incorporation.(1)
3.2 Registrant's Amended and Restated Bylaws.(1)
3.3 Registrant's Certificate of Amendment of Amended and
Restated Certificate of Incorporation.(2)
3.4 Amendment to Registrant's Amended and Restated Bylaws.(3)
4.1 Reference is made to Exhibits 3.1-3.4.
4.2 Form of Stock Purchase Agreement dated February 18, 2000
between the Registrant and purchasers of the Registrant's
Common Stock.
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.3 Consent of Cooley Godward LLP. Reference is made to Exhibit
5.1.
</TABLE>
- -------------------------
(1) Filed as an exhibit to Registrant's Registration Statement on Form S-1 (No.
333-44195) or amendments thereto and incorporated herein by reference.
(2) Filed as an exhibit to Registrant's Registration Statement on Form S-3 (No.
333-58831) or amendments thereto, and incorporated herein by reference.
(3) Filed as an exhibit to Registrant's Quarterly Report on Form 10-Q for the
quarter ended September 30, 1999.
ITEM 17. UNDERTAKINGS.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers, and controlling persons of the
Registrant pursuant to the provisions described in Item 15 or otherwise, the
Registrant has been advised that in the opinion of the SEC, such indemnification
is against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer, or controlling person of the Registrant in the
successful defense of any action, suit, or proceeding) is asserted by such
director, officer, or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
II-2
<PAGE> 22
The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) to include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement;
(iii) to include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
provided, however, that clauses (i) and (ii) do not apply if the
information required to be included in a post-effective amendment by these
clauses is contained in periodic reports filed by the Registrant pursuant
to section 13 or section 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in the registration statement;
(2) that, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof;
(3) to remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering; and
(4) that, for purposes of determining any liability under the
Securities Act of 1933, each filing of the Registrant's annual report
pursuant to section 13(a) or section 15(d) of the Securities Exchange Act
of 1934 (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall
be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
II-3
<PAGE> 23
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of San Diego, State of California, on the 27th day of
March 2000.
AMYLIN PHARMACEUTICALS, INC.
By: /s/ JOSEPH C. COOK
------------------------------------
Joseph C. Cook, Jr.
Chairman of the Board and Chief
Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Joseph C. Cook, Jr. as his true and
lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for the undersigned and in his name, place and stead, in any and
all capacities, to sign any or all amendments (including post-effective
amendments) to the Registration Statement and to file the same, with all
exhibits thereto, and all documents in connection therewith, with the Securities
and Exchange Commission, granting unto said attorney-in-fact and agent, full
power and authority to do and perform each and every act and thing requisite and
necessary to be done in connection therewith, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorney-in-fact and agent, or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <C> <S>
/s/ JOSEPH C. COOK Chairman of the Board and March 27, 2000
- ----------------------------------------------------- Chief Executive Officer
Joseph C. Cook, Jr.
/s/ JAMES C. BLAIR Director March 27, 2000
- -----------------------------------------------------
James C. Blair
/s/ VAUGHN D. BRYSON Director March 27, 2000
- -----------------------------------------------------
Vaughn D. Bryson
/s/ JAMES C. GAITHER Director March 27, 2000
- -----------------------------------------------------
James C. Gaither
/s/ GINGER L. GRAHAM Director March 27, 2000
- -----------------------------------------------------
Ginger L. Graham
/s/ HOWARD E. GREENE, JR. Director March 27, 2000
- -----------------------------------------------------
Howard E. Greene, Jr.
/s/ VAUGHN M. KAILIAN Director March 27, 2000
- -----------------------------------------------------
Vaughn M. Kailian
</TABLE>
II-4
<PAGE> 24
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <C> <S>
/s/ DONALD H. RUMSFELD Director March 27, 2000
- -----------------------------------------------------
Donald H. Rumsfeld
/s/ JAY S. SKYLER Director March 27, 2000
- -----------------------------------------------------
Jay S. Skyler, M.D.
/s/ MARTIN R. BROWN Senior Vice President of March 27, 2000
- ----------------------------------------------------- Operations (Principal
Martin R. Brown Accounting Officer)
</TABLE>
II-5
<PAGE> 25
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
- ------- -----------------------
<C> <S>
3.1 Registrant's Amended and Restated Certificate of
Incorporation.(1)
3.2 Registrant's Amended and Restated Bylaws.(1)
3.3 Registrant's Certificate of Amendment of Amended and
Restated Certificate of Incorporation.(2)
3.4 Amendment to Registrant's Amended and Restated Bylaws.(3)
4.1 Reference is made to Exhibits 3.1-3.4.
4.2 Form of Stock Purchase Agreement dated February 18, 2000
between the Registrant and purchasers of the Registrant's
Common Stock.
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.3 Consent of Cooley Godward LLP. Reference is made to Exhibit
5.1.
</TABLE>
- -------------------------
(1) Filed as an exhibit to Registrant's Registration Statement on Form S-1 (No.
333-44195) or amendments thereto, and incorporated herein by reference.
(2) Filed as an exhibit to Registrant's Registration Statement on Form S-3 (No.
333-58831) or amendments thereto, and incorporated herein by reference.
(3) Filed as an exhibit to Registrant's Quarterly Report on Form 10-Q for the
quarter ended September 30, 1999.
<PAGE> 1
EXHIBIT 4.2
STOCK PURCHASE AGREEMENT
Amylin Pharmaceuticals, Inc.
9373 Towne Centre Drive
San Diego, California 92121
The undersigned (the "Investor"), hereby confirms its agreement with you as
follows:
1. This Stock Purchase Agreement (the "Agreement") is made as of the date set
forth below between Amylin Pharmaceuticals, Inc., a Delaware corporation (the
"Company"), and the Investor.
2. The Company has authorized the sale and issuance of up to
_______________________ shares (the "Shares") of common stock of the Company,
$.001 par value per share (the "Common Stock"), subject to adjustment by the
Company's Board of Directors, to certain investors in a private placement (the
"Offering").
3. The Company and the Investor agree that the Investor will purchase from the
Company and the Company will issue and sell to the Investor ____________ shares,
for a purchase price of $_________________ per share, or an aggregate purchase
price of $____________________, pursuant to the Terms and Conditions for
Purchase of Shares attached hereto as Annex I and incorporated herein by this
reference as if fully set forth herein. Unless otherwise requested by the
Investor, certificates representing the Shares purchased by the Investor will be
registered in the Investor's name and address as set forth below.
4. The Investor represents that, except as set forth below, (a) it has had no
position, office or other material relationship within the past three years with
the Company or its affiliates, (b) neither it, nor any group of which it is a
member or to which it is related, beneficially owns (including the right to
acquire or vote) any securities of the Company and (c) it has no direct or
indirect affiliation or association with any NASD member. Exceptions:
________________________________________________________________________________
(If no exceptions, write "none." If left blank,
response will be deemed to be "none.")
Please confirm that the foregoing correctly sets forth the agreement between us
by signing in the space provided below for that purpose.
DATED AS OF: , 2000
-------------------
---------------------------------------
"INVESTOR"
By:
-------------------------------------
Print Name:
-----------------------------
Title:
----------------------------------
Address:
--------------------------------
----------------------------------------
AGREED AND ACCEPTED:
AMYLIN PHARMACEUTICALS, INC.
By:
-------------------------------------
Title:
----------------------------------
<PAGE> 2
ANNEX I
TERMS AND CONDITIONS FOR PURCHASE OF SHARES
1. AUTHORIZATION AND SALE OF THE SHARES. Subject to the terms and
conditions of this Agreement, the Company has authorized the sale of the Shares.
2. AGREEMENT TO SELL AND PURCHASE THE SHARES; SUBSCRIPTION DATE.
2.1 At the Closing (as defined in Section 3), the Company will
sell to the Investor, and the Investor will purchase from the Company, upon the
terms and conditions hereinafter set forth, the number of Shares set forth on
the signature page to which these Terms and Conditions for Purchase of Shares
are attached as Annex I (the "Signature Page") at the purchase price set forth
on such Signature Page.
2.2 The Company proposes to enter into this same form of Stock
Purchase Agreement with certain other investors (the "Other Investors") and
expects to complete sales of Shares to them. (The Investor and the Other
Investors are hereinafter sometimes collectively referred to as the "Investors,"
and this Agreement and the Stock Purchase Agreements executed by the Other
Investors are hereinafter sometimes collectively referred to as the
"Agreements.") The Company will accept executed Agreements from Investors for
the purchase of Shares commencing upon the date on which the Company provides
the Investors with the proposed purchase price per Share and concluding upon the
date (the "Subscription Date") on which the Company has (i) executed Agreements
with Investors for the purchase of Shares in the amount of at least $40,000,000
in the aggregate and (ii) notified Chase Securities Inc., Prudential Vector
Healthcare Group and Warburg Dillon Read LLC (in their capacities as Placement
Agents for the Shares, the "Placement Agents") in writing that it is no longer
accepting Agreements from Investors for the purchase of Shares.
2.3 Investor acknowledges that the Company intends to pay the
Placement Agents a fee in respect of the sale of Shares to the Investor.
3. DELIVERY OF THE SHARES AT CLOSING. The completion of the purchase and
sale of the Shares (the "Closing") shall occur at a place and time (the "Closing
Date") to be specified by the Company and the Placement Agents, not later than
four (4) complete trading days following the Subscription Date unless otherwise
extended by the Company, and of which the Investors will be notified in advance
by the Placement Agents. At the Closing, (i) the Company shall deliver to the
Investor one or more stock certificates representing the number of Shares set
forth on the signature page hereto, each such certificate to be registered in
the name of the Investor or, if so indicated on the Stock Certificate
Questionnaire attached hereto as Exhibit A, in the name of a nominee designated
by the Investor and (ii) the Investor shall deliver immediately available funds
in the amount of the aggregate purchase price for the Shares by wire transfer to
an account designated by the Placement Agents.
The Company's obligation to issue the Shares to the Investor shall be
subject to the following conditions, any one or more of which may be waived by
the Company: (a) receipt by the Company of the purchase price for the Shares
being purchased hereunder as set forth on the
1.
<PAGE> 3
Signature Page hereto; (b) completion of purchases and sales under the
Agreements with the Other Investors; and (c) the accuracy of the representations
and warranties made by the Investors and the fulfillment of those undertakings
of the Investors to be fulfilled prior to the Closing.
The Investor's obligation to purchase the Shares shall be subject to the
following conditions, any one or more of which may be waived by the Investor:
(a) Investors shall have executed Agreements for the purchase of Shares in the
amount of at least $40,000,000 in the aggregate; (b) the accuracy of the
Company's representations and warranties contained in this Agreement at the
Closing; and (c) the satisfaction of all of the conditions set forth in the
Placement Agency Agreement between the Company and the Placement Agents. Subject
to clause (a) above, the Investor's obligations are expressly not conditioned on
the purchase by any or all of the other Investors of the Shares that they have
agreed to purchase from the Company.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY. Except as
otherwise described in the Company's regular reports on Form 10-Q and 10-K and
the Company's Registration Statement on Form S-3 (Registration No. 333-87033) as
filed by the Company with the Securities and Exchange Commission in 1999 (the
"SEC Documents") and provided to the Investor, in the Company's press releases
since September 30, 1999 provided to the Investor, and in the other proprietary
information disclosed by the Company to the Investor in contemplation of this
offering (including the documents incorporated by reference therein, the
"Company Information"), which qualifies the following representations and
warranties in their entirety, the Company hereby represents and warrants to, and
covenants with, the Investor, as follows:
4.1 ORGANIZATION. The Company is duly incorporated and validly
existing in good standing under the laws of the jurisdiction of its
organization. The Company has full power and authority to own, operate and
occupy its properties and to conduct its business as presently conducted and is
registered or qualified to do business and in good standing in each jurisdiction
in which it owns or leases property or transacts business and where the failure
to be so qualified would have a material adverse effect upon the business,
financial condition, properties or operations of the Company ("Material Adverse
Effect"), and no proceeding has been instituted in any such jurisdiction
revoking, limiting or curtailing, or seeking to revoke, limit or curtail, such
power and authority or qualification.
4.2 DUE AUTHORIZATION. The Company has all requisite power and
authority to execute, deliver and perform its obligations under the Agreements,
and the Agreements have been duly authorized and validly executed and delivered
by the Company and constitute legal, valid and binding agreements of the Company
enforceable against the Company in accordance with their terms, except as rights
to indemnity and contribution may be limited by state or federal securities laws
or the public policy underlying such laws, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' and contracting parties' rights generally and
except as enforceability may be subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
4.3 NON-CONTRAVENTION. The execution and delivery of the
Agreements, the issuance and sale of the Shares to be sold by the Company under
the Agreements, the fulfillment
2.
<PAGE> 4
of the terms of the Agreements and the consummation of the transactions
contemplated thereby will not (A) conflict with or constitute a violation of, or
default (with the passage of time or otherwise) under, (i) any material bond,
debenture, note or other evidence of indebtedness, or any material lease,
contract, indenture, mortgage, deed of trust, loan agreement, joint venture or
other agreement or instrument to which the Company is a party or by which it or
its property is bound, where such conflict, violation or default is likely to,
individually or in the aggregate, result in a Material Adverse Effect, (ii) the
charter, by-laws or other organizational documents of the Company, or (iii) any
law, administrative regulation, ordinance or order of any court or governmental
agency, arbitration panel or authority binding upon the Company or its property,
where such conflict, violation or default is likely to, individually or in the
aggregate, result in a Material Adverse Effect, or (B) result in the creation or
imposition of any lien, encumbrance, claim, security interest or restriction
whatsoever upon any of the material properties or assets of the Company or an
acceleration of indebtedness pursuant to any obligation, agreement or condition
contained in any material bond, debenture, note or any other evidence of
indebtedness or any material indenture, mortgage, deed of trust or any other
agreement or instrument to which the Company is a party or by which it is bound
or to which any of the property or assets of the Company is subject. No consent,
approval, authorization or other order of, or registration, qualification or
filing with, any regulatory body, administrative agency, or other governmental
body in the United States is required for the execution and delivery of the
Agreements and the valid issuance and sale of the Shares to be sold pursuant to
the Agreements, other than such as have been made or obtained, and except for
any securities filings required to be made under federal or state securities
laws.
4.4 CAPITALIZATION. The capitalization of the Company is
described in the Company's SEC Documents. The Company has not issued any capital
stock since September 30, 1999 other than (i) pursuant to employee benefit plans
disclosed in the Company's SEC Documents; (ii) a warrant to purchase 10,000
shares of the Company's Common Stock issued in connection with the Company's
acquisition of rights to certain intellectual property; and (iii) 3,700,000
shares of Common Stock issued in a private placement on October 6, 1999. The
Shares to be sold pursuant to the Agreements have been duly authorized, and when
issued and paid for in accordance with the terms of the Agreements, will be duly
and validly issued, fully paid and nonassessable. The outstanding shares of
capital stock of the Company have been duly and validly issued and are fully
paid and nonassessable, have been issued in compliance with all federal and
state securities laws, and were not issued in violation of any preemptive rights
or similar rights to subscribe for or purchase securities. Except as set forth
in or contemplated by the Company's SEC Documents or as otherwise described in
this Agreement, there are no outstanding rights (including, without limitation,
preemptive rights), warrants or options to acquire, or instruments convertible
into or exchangeable for, any unissued shares of capital stock or other equity
interest in the Company, or any contract, commitment, agreement, understanding
or arrangement of any kind to which the Company is a party and relating to the
issuance or sale of any capital stock of the Company, any such convertible or
exchangeable securities or any such rights, warrants or options. Without
limiting the foregoing, no preemptive right, co-sale right, registration right,
right of first refusal or other similar right exists with respect to the
issuance and sale of the Shares. Except as disclosed in the Company's SEC
Documents or as otherwise described in this Agreement, there
3.
<PAGE> 5
are no stockholders agreements, voting agreements or other similar agreements
with respect to the Common Stock to which the Company is a party.
4.5 LEGAL PROCEEDINGS. There is no legal or governmental
proceeding pending or, to the Company's knowledge, overtly threatened to which
the Company is or would be a party or of which the business or property of the
Company is or would be subject that is not disclosed in the Company's SEC
Documents that is required to be so disclosed.
4.6 NO VIOLATIONS. The Company is not in violation of its
charter, bylaws or other organizational document, or in violation of any law,
administrative regulation, ordinance or order of any court or governmental
agency, arbitration panel or authority applicable to the Company, which
violation, individually or in the aggregate, would be reasonably likely to have
a Material Adverse Effect, or is in default (and there exists no condition
which, with the passage of time or otherwise, would constitute a default) in the
performance of any material bond, debenture, note or any other evidence of
indebtedness in any indenture, mortgage, deed of trust or any other material
agreement or instrument to which the Company is a party or by which the Company
is bound or by which the property of the Company is bound, which would,
individually or in the aggregate, be reasonably likely to have a Material
Adverse Effect.
4.7 GOVERNMENTAL PERMITS, ETC. With the exception of the matters
which are dealt with separately in Sections 4.1, 4.12, and 4.13, the Company has
all necessary franchises, licenses, certificates and other authorizations from
any foreign, federal, state or local government or governmental agency,
department or body that are currently necessary for the operation of the
business of the Company as currently conducted except where the failure to
currently possess could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
4.8 INTELLECTUAL PROPERTY.
(a) The Company has ownership or license or legal right to
use all material patent, copyright, trade secret and trademark rights known by
it to be necessary to the conduct of the business of the Company as now
conducted (collectively, "Intellectual Property") other than Intellectual
Property generally available on commercial terms from other sources.
(b) All material licenses or other material agreements
under which (i) the Company is granted rights in Intellectual Property, other
than Intellectual Property generally available on commercial terms from other
sources, and (ii) the Company has granted rights to others in Intellectual
Property owned or licensed by the Company, are in full force and effect and, to
the knowledge of the Company, there is no material default by the Company or any
other party thereto.
(c) The Company believes it has taken all steps required
in accordance with sound business practice and business judgment to establish
and preserve its ownership of all material copyright, trade secret and other
proprietary rights with respect to its products and technology.
4.
<PAGE> 6
(d) To the knowledge of the Company, the present business,
activities and products of the Company do not infringe any intellectual property
of any other person, except where such infringement would not, individually or
in the aggregate, have a Material Adverse Effect on the Company. Except as
described in the Company's SEC Documents, no proceeding charging the Company
with infringement of any adversely held Intellectual Property has been filed. To
the knowledge of the Company, the Company is not making unauthorized use of any
confidential information or trade secrets of any person. To the Company's
knowledge, the activities of the Company or any of its employees on behalf of
the Company do not violate any agreements or arrangements known to the Company
which any such employees have with other persons, if any.
4.9 FINANCIAL STATEMENTS. The financial statements of the Company
and the related notes contained in the Company's SEC Documents present fairly,
in accordance with generally accepted accounting principles, the financial
position of the Company as of the dates indicated, and the results of its
operations and cash flows for the periods therein specified. Such financial
statements (including the related notes) have been prepared in accordance with
generally accepted accounting principles applied on a consistent basis
throughout the periods therein specified, except as disclosed in the Company's
SEC Documents.
4.10 NO MATERIAL ADVERSE CHANGE. Except as disclosed in the
Company's press releases or other proprietary information provided to the
Investor in contemplation of this Offering, since September 30, 1999, there has
not been (i) any obligation, direct or contingent, that is material to the
Company, incurred by the Company, except obligations incurred in the ordinary
course of business, (ii) any dividend or distribution of any kind declared, paid
or made on the capital stock of the Company, (iii) any loss or damage (whether
or not insured) to the physical property of the Company which has been sustained
which, individually or in the aggregate, has a Material Adverse Effect; or (iv)
any other event or change that, individually or in the aggregate, would have a
Material Adverse Effect.
4.11 NASDAQ COMPLIANCE. The Company's Common Stock is registered
pursuant to Section 12(g) of the Exchange Act and, as of the date hereof, is
listed on The Nasdaq National Market (the "Nasdaq Stock Market"), and the
Company has taken no action designed to, or likely to have the effect of,
terminating the registration of the Common Stock under the Exchange Act or
delisting the Common Stock from the Nasdaq Stock Market.
4.12 REPORTING STATUS. The Company has filed in a timely manner
all documents that the Company was required to file under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), during the 12 months
preceding the date of this Agreement. The following documents complied in all
material respects with the SEC's requirements as of their respective filing
dates, and the information contained therein as of the date thereof did not
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein in
light of the circumstances under where they were made not misleading:
(a) The Company's Annual Report on Form 10-K for the year
ended December 31, 1998 (the "10-K");
5.
<PAGE> 7
(b) The Company's Quarterly Reports on Form 10-Q for each
of the quarters ended March 31, 1999, June 30, 1999 and September 30, 1999; and
(c) All other documents, if any, filed by the Company with
the Securities and Exchange Commission since December 31, 1998 pursuant to the
reporting requirements of the Exchange Act.
4.13 LISTING. The Company shall comply with all requirements of
the National Association of Securities Dealers, Inc. with respect to the
issuance of the Shares and the listing thereof on the Nasdaq Stock Market.
4.14 FOREIGN CORRUPT PRACTICES. Neither the Company nor, to the
knowledge of the Company, any agent or other person acting on behalf of the
Company, have (i) directly or indirectly, used any corporate funds for unlawful
contributions, gifts, entertainment or other unlawful expenses related to
foreign or domestic political activity, (ii) made any unlawful payment to
foreign or domestic government officials or employees or to foreign or domestic
political parties or campaigns from corporate funds, (iii) failed to disclose
fully any contribution made by the Company or made by any person acting on its
behalf and of which the Company is aware in violation of law or (iv) violated in
any material respect any provision of the Foreign Corrupt Practices Act of 1977,
as amended.
4.15 NO MANIPULATION OF STOCK. The Company has not taken and will
not, in violation of applicable law, take, any action designed to or that might
reasonably be expected to cause or result in unlawful manipulation of the price
of the Common Stock to facilitate the sale or resale of the Shares.
4.16 NO MATERIAL SUBSIDIARIES. The Company has no subsidiaries
that, individually or in the aggregate, conduct any material business activities
or have any material assets or liabilities (whether fixed or contingent).
4.17 LEGAL OPINION. The Company shall cause to be delivered to
the Investors by counsel to the Company a legal opinion pertaining to the
availability of an exemption from the registration provisions of the Securities
Act.
4.18 OTHER AGREEMENTS. In the event that more than one Investor
participates in the Offering, each Stock Purchase Agreement between the Company
and each Investor shall contain substantially identical terms. In the event that
any Stock Purchase Agreement between the Company and another Investor in this
Offering shall contain terms more favorable to such Investor than provided
herein, after taking into account any other consideration provided, this
Agreement shall be amended to reflect those more favorable terms.
5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE INVESTOR.
5.1 The Investor represents and warrants to, and covenants with,
the Company that: (i) the Investor is an "accredited investor" as defined in
Regulation D under the Securities Act and the Investor is also knowledgeable,
sophisticated and experienced in making, and is qualified to make decisions with
respect to, investments in shares presenting an investment
6.
<PAGE> 8
decision like that involved in the purchase of the Shares, including investments
in securities issued by the Company and investments in comparable companies, and
has requested, received, reviewed and considered all information it deemed
relevant in making an informed decision to purchase the Shares; (ii) the
Investor is acquiring the number of Shares set forth on the Signature Page
hereto in the ordinary course of its business and for its own account for
investment only and with no present intention of distributing any of such Shares
or any arrangement or understanding with any other persons regarding the
distribution of such Shares; (iii) the Investor will not, directly or
indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit
any offers to buy, purchase or otherwise acquire or take a pledge of) any of the
Shares except in compliance with the Securities Act, applicable state securities
laws and the respective rules and regulations promulgated thereunder; (iv) the
Investor has answered all questions on the Signature Page hereto and the
Investor Questionnaire attached hereto as Exhibit B for use in preparation of
the Registration Statement and the answers thereto are true and correct in all
material respects as of the date hereof and will be true and correct in all
material respects as of the Closing Date; (v) the Investor will notify the
Company immediately of any material change in any of such information referred
to in the preceding clause (iv) until such time as the Investor has sold all of
its Shares or until the Company is no longer required to keep the Registration
Statement effective; and (vi) the Investor has, in connection with its decision
to purchase the number of Shares set forth on the signature page hereto, relied
only upon the Company Information provided to the Investor by the Company in
contemplation of this offering and the representations and warranties of the
Company contained herein. Investor understands that its acquisition of the
Shares has not been registered under the Securities Act of 1933, as amended (the
"Securities Act"), or registered or qualified under any state securities law in
reliance on specific exemptions therefrom, which exemptions may depend upon,
among other things, the bona fide nature of the Investor's investment intent as
expressed herein. Investor has completed or caused to be completed and delivered
to the Company the Investor Questionnaire attached hereto Exhibit B, which
questionnaire is true and correct in all material respects.
5.2 The Investor acknowledges, represents and agrees that no
action has been or will be taken in any jurisdiction outside the United States
by the Company or the Placement Agent that would permit an offering of the
Shares, or possession or distribution of offering materials in connection with
the issue of the Shares, in any jurisdiction outside the United States where
action for that purpose is required. Each Investor outside the United States
will comply with all applicable laws and regulations in each foreign
jurisdiction in which it purchases, offers, sells or delivers Shares or has in
its possession or distributes any offering material, in all cases at its own
expense. The Placement Agents have not been authorized to make any
representation or use any information in connection with the issue, placement,
purchase and sale of the Shares.
5.3 The Investor hereby covenants with the Company not to make
any sale of the Shares without complying in all material respects with the
provisions of this Agreement, including Section 7.2 hereof, and, if applicable,
without effectively causing the prospectus delivery requirement under the
Securities Act to be satisfied, and the Investor acknowledges that the
certificates evidencing the Shares will be imprinted with a legend that
prohibits their transfer except in accordance therewith. The Investor
acknowledges that there may occasionally be times when the Company, based on the
advice of its counsel, determines that it must suspend the use of the Prospectus
forming a part of the Registration Statement (as defined herein) until such time
as
7.
<PAGE> 9
an amendment to the Registration Statement has been filed by the Company and
declared effective by the SEC or until the Company has amended or supplemented
such Prospectus.
5.4 The Investor further represents and warrants to, and
covenants with, the Company that (i) the Investor has full right, power,
authority and capacity to enter into this Agreement and to consummate the
transactions contemplated hereby and has taken all necessary action to authorize
the execution, delivery and performance of this Agreement, and (ii) this
Agreement constitutes a valid and binding obligation of the Investor enforceable
against the Investor in accordance with its terms, except as enforceability may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' and contracting parties' rights generally and
except as enforceability may be subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law) and except as the indemnification agreements of the Investors
herein may be legally unenforceable.
5.5 Other than in a transaction exempt from registration under
the Securities Act, Investor will not, prior to the effectiveness of the
Registration Statement, sell, offer to sell, solicit offers to buy, dispose of,
loan, pledge or grant any right with respect to (collectively, a "Disposition"),
the Common Stock of the Company, nor will Investor engage in any hedging or
other transaction which is designed to or could reasonably be expected to lead
to or result in a Disposition of Common Stock of the Company by the Investor or
any other person or entity. Such prohibited hedging or other transactions would
include, without limitation, effecting any short sale or having in effect any
short position (whether or not such sale or position is against the box and
regardless of when such position was entered into) or any purchase, sale or
grant of any right (including, without limitation, any put or call option) with
respect to the Common Stock of the Company or with respect to any security
(other than a broad-based market basket or index) that includes, relates to or
derives any significant part of its value from the Common Stock of the Company.
5.6 The Investor understands that nothing in this Agreement or
any other materials presented to the Investor in connection with the purchase
and sale of the Shares constitutes legal, tax or investment advice. The Investor
has consulted such legal, tax and investment advisors as it, in its sole
discretion, has deemed necessary or appropriate in connection with its purchase
of Shares.
6. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
Notwithstanding any investigation made by any party to this Agreement or by the
Placement Agents, all covenants, agreements, representations and warranties made
by the Company and the Investor herein shall survive the execution of this
Agreement, the delivery to the Investor of the Shares being purchased and the
payment therefor.
7. REGISTRATION OF THE SHARES; COMPLIANCE WITH THE SECURITIES ACT.
7.1 REGISTRATION PROCEDURES AND EXPENSES. The Company shall:
(a) subject to receipt of necessary information from the
Investors, prepare and file with the SEC, as soon as practicable, but in no
event later than thirty (30) days
8.
<PAGE> 10
after the Closing Date, a registration statement on Form S-3 (the "Registration
Statement") to enable the resale of the Shares by the Investors from time to
time through the automated quotation system of the Nasdaq Stock Market or in
privately-negotiated transactions; provided, however, that in the even Form S-3
is not available to the Company at any time after the date of this Agreement,
the Company shall file such other form as may be available if holders who hold
Shares with a market value of at least One Million Dollars ($1,000,000) deliver
a written request to the Company that the Company do so, where such market value
is determined as of the date of such written request. Any such registration
statement filed pursuant to the above provision shall be considered a
"Registration Statement" for purposes of Agreement.
(b) use its reasonable efforts, subject to receipt of
necessary information from the Investors, to cause the Registration Statement to
become effective as soon as practicable, and shall use its best efforts, subject
to receipt of necessary information from the Investors, to cause the
Registration Statement to become effective not later than one hundred twenty
(120) days after the Closing Date. In the event such Registration Statement is
not effective at the expiration of such 120-day period, the Company shall
continue to use all reasonable commercial efforts to cause it to become
effective until it becomes effective.
(c) prepare and file with the SEC such amendments and
supplements to the Registration Statement and the Prospectus used in connection
therewith as may be necessary to keep the Registration Statement current and
effective for a period not exceeding, with respect to each Investor's Shares
purchased hereunder, the earlier of (i) the second anniversary of the Closing
Date, (ii) the date on which the Investor may sell all Shares then held by the
Investor without restriction under Rule 144(k) of the Securities Act or (iii)
such time as all Shares purchased by such Investor in this Offering have been
sold pursuant to a registration statement.
(d) furnish to the Placement Agents and to the Investor
with respect to the Shares registered under the Registration Statement such
number of copies of the Registration Statement, Prospectuses and Preliminary
Prospectuses in conformity with the requirements of the Securities Act and such
other documents as they may reasonably request, in order to facilitate the
public sale or other disposition of all or any of the Shares by the Investor,
provided, however, that the obligation of the Company to deliver copies of
Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the
receipt by the Company of reasonable assurances from the Investor that the
Investor will comply with the applicable provisions of the Securities Act and of
such other securities or blue sky laws as may be applicable in connection with
any use of such Prospectuses or Preliminary Prospectuses;
(e) file documents required of the Company for normal blue
sky clearance in states specified in writing by the Investor, provided, however,
that the Company shall not be required to qualify to do business or consent to
service of process generally in any jurisdiction in which it is not now so
qualified or has not so consented;
(f) bear all expenses in connection with the procedures in
paragraph (a) through (e) of this Section 7.1 and the registration of the Shares
pursuant to the Registration Statement; and
9.
<PAGE> 11
(g) advise the Investors, promptly after it shall receive
notice or obtain knowledge of the issuance of any stop order by the SEC delaying
or suspending the effectiveness of the Registration Statement or of the
initiation of any proceeding for that purpose; and it will promptly use its
commercially reasonable efforts to prevent the issuance of any stop order or to
obtain its withdrawal at the earliest possible moment if such stop order should
be issued.
It shall be a condition precedent to the obligations of the Company to
take any action pursuant to this Section 7.1 that the Investor shall furnish to
the Company such information regarding itself, the Shares to be sold by
Investor, and the intended method of disposition of such securities as shall be
reasonably required to effect the registration of the Shares.
The Company understands that the Investor disclaims being an
underwriter, but the Investor being deemed an underwriter by the SEC shall not
relieve the Company of any obligations it has hereunder, provided, however, that
if the Company receives notification from the SEC that the Investor is deemed an
underwriter, then the period by which the Company is obligated to submit an
acceleration request to the SEC shall be extended to the earlier of (i) the 90th
day after such SEC notification, or (ii) 120 days after the initial filing of
the Registration Statement with the SEC.
7.2 TRANSFER OF SHARES AFTER REGISTRATION; SUSPENSION.
(a) The Investor agrees that it will not effect any
Disposition of the Shares or its right to purchase the Shares that would
constitute a sale within the meaning of the Securities Act except (i) as
contemplated in the Registration Statement referred to in Section 7.1 and as
described below, or (ii) in a transaction exempt from registration under the
Securities Act, and that it will promptly notify the Company of any changes in
the information set forth in the Registration Statement regarding the Investor
or its plan of distribution.
(b) Subject to paragraph (c) below (if applicable), the
Company shall: (i) if deemed necessary by the Company, prepare and file from
time to time with the SEC a post-effective amendment to the Registration
Statement or a supplement to the related Prospectus or a supplement or amendment
to any document incorporated therein by reference or file any other required
document so that such Registration Statement will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
so that, as thereafter delivered to purchasers of the Shares being sold
thereunder, such Prospectus will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading; (ii) provide the Investor copies of any documents
filed pursuant to Section 7.2(b)(i); and (iii) inform each Investor that the
Company has complied with its obligations in Section 7.2(b)(i) (or that, if the
Company has filed a post-effective amendment to the Registration Statement which
has not yet been declared effective, the Company will notify the Investor to
that effect, will use its reasonable efforts to secure the effectiveness of such
post-effective amendment as promptly as possible and will promptly notify the
Investor pursuant to Section 7.2(b)(i) hereof when the amendment has become
effective).
10.
<PAGE> 12
(c) Subject to paragraph (d) below, in the event: (i) of
any request by the SEC or any other federal or state governmental authority
during the period of effectiveness of the Registration Statement for amendments
or supplements to a Registration Statement or related Prospectus or for
additional information; (ii) of the issuance by the SEC or any other federal or
state governmental authority of any stop order suspending the effectiveness of a
Registration Statement or the initiation of any proceedings for that purpose;
(iii) of the receipt by the Company of any notification with respect to the
suspension of the qualification or exemption from qualification of any of the
Shares for sale in any jurisdiction or the initiation of any proceeding for such
purpose; or (iv) of any event or circumstance which necessitates the making of
any changes in the Registration Statement or Prospectus, or any document
incorporated or deemed to be incorporated therein by reference, so that, in the
case of the Registration Statement, it will not contain any untrue statement of
a material fact or any omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, and that in
the case of the Prospectus, it will not contain any untrue statement of a
material fact or any omission to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; then the Company shall
deliver a certificate in writing to the Investor (the "Suspension Notice") to
the effect of the foregoing and, upon receipt of such Suspension Notice, the
Investor will refrain from selling any Shares pursuant to the Registration
Statement (a "Suspension") until the Investor's receipt of copies of a
supplemented or amended Prospectus prepared and filed by the Company, or until
it is advised in writing by the Company that the current Prospectus may be used,
and has received copies of any additional or supplemental filings that are
incorporated or deemed incorporated by reference in any such Prospectus. In the
event of any Suspension, the Company will use its reasonable efforts to cause
the use of the Prospectus so suspended to be resumed as soon as reasonably
practicable within 20 business days after delivery of a Suspension Notice to the
Investors. In addition to and without limiting any other remedies (including,
without limitation, at law or at equity) available to the Investor, the Investor
shall be entitled to specific performance in the event that the Company fails to
comply with the provisions of this Section 7.2(c).
(d) Notwithstanding the foregoing paragraphs of this
Section 7.2, the Investor shall not be prohibited from selling Shares under the
Registration Statement as a result of Suspensions on more than two occasions of
not more than 30 days each in any twelve month period, unless, in the good faith
judgment of the Company's Board of Directors, upon advice of counsel, the sale
of Shares under the Registration Statement in reliance on this paragraph 7.2(d)
would be reasonably likely to cause a violation of the Securities Act or the
Exchange Act and result in potential liability to the Company.
(e) Provided that a Suspension is not then in effect the
Investor may sell Shares under the Registration Statement, provided that it
arranges for delivery of a current Prospectus to the transferee of such Shares.
Upon receipt of a request therefor, the Company has agreed to provide an
adequate number of current Prospectuses to the Investor and to supply copies to
any other parties requiring such Prospectuses.
(f) In the event of a sale of Shares by the Investor, the
Investor must also deliver to the Company's transfer agent, with a copy to the
Company, a Certificate of
11.
<PAGE> 13
Subsequent Sale substantially in the form attached hereto as Exhibit C, so that
the shares may be properly transferred.
7.3 INDEMNIFICATION. For the purpose of this Section 7.3:
(a) the term "Selling Stockholder" shall include the
Investor and any affiliate, officer, director, employee or control person (as
defined by Section 15 of the Securities Act) of such Investor;
(b) the term "Registration Statement" shall include any
final Prospectus, exhibit, supplement or amendment included in or relating to
the Registration Statement referred to in Section 7.1; and
(c) the term "untrue statement" shall include any untrue
statement or alleged untrue statement, or any omission or alleged omission to
state in the Registration Statement a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(i) The Company agrees to indemnify and hold
harmless each Selling Stockholder from and against any losses, claims, damages
or liabilities to which such Selling Stockholder may become subject (under the
Securities Act or otherwise) insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arise out of, or are
based upon (i) any untrue statement of a material fact contained in the
Registration Statement, or (ii) any failure by the Company to fulfill any
undertaking included in the Registration Statement, and the Company will
reimburse such Selling Stockholder for any reasonable legal or other expenses
reasonably incurred in investigating, defending or preparing to defend any such
action, proceeding or claim, provided, however, that the Company shall not be
liable in any such case to the extent that such loss, claim, damage or liability
arises out of, or is based upon, an untrue statement made in such Registration
Statement in reliance upon and in conformity with written information furnished
to the Company by or on behalf of such Selling Stockholder specifically for use
in preparation of the Registration Statement or any statement or omission in any
Prospectus that is corrected in any subsequent Prospectus that was delivered to
the Investor prior to the pertinent sale or sales by the Investor.
(ii) The Investor agrees to indemnify and hold
harmless the Company (and each person, if any, who controls the Company within
the meaning of Section 15 of the Securities Act, each officer of the Company who
signs the Registration Statement and each director of the Company) from and
against any losses, claims, damages or liabilities to which the Company (or any
such officer, director or controlling person) may become subject (under the
Securities Act or otherwise), insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arise out of, or are
based upon any untrue statement of a material fact contained in the Registration
Statement if such untrue statement was made in reliance upon and in conformity
with written information furnished by or on behalf of the Investor specifically
for use in preparation of the Registration Statement, and the Investor will
reimburse the Company (or such officer, director or controlling person), as the
case may be, for any legal or other expenses reasonably incurred in
investigating, defending or preparing to defend any such action, proceeding or
claim.
12.
<PAGE> 14
(iii) Promptly after receipt by any indemnified
person of a notice of a claim or the beginning of any action in respect of which
indemnity is to be sought against an indemnifying person pursuant to this
Section 7.3, such indemnified person shall notify the indemnifying person in
writing of such claim or of the commencement of such action, but the omission to
so notify the indemnifying party will not relieve it from any liability which it
may have to any indemnified party under this Section 7.3 (except to the extent
that such omission materially and adversely affects the indemnifying party's
ability to defend such action) or from any liability otherwise than under this
Section 7.3. Subject to the provisions hereinafter stated, in case any such
action shall be brought against an indemnified person, the indemnifying person
shall be entitled to participate therein, and, to the extent that it shall elect
by written notice delivered to the indemnified party promptly after receiving
the aforesaid notice from such indemnified party, shall be entitled to assume
the defense thereof, with counsel reasonably satisfactory to such indemnified
person. After notice from the indemnifying person to such indemnified person of
its election to assume the defense thereof, such indemnifying person shall not
be liable to such indemnified person for any legal expenses subsequently
incurred by such indemnified person in connection with the defense thereof,
provided, however, that if there exists or shall exist a conflict of interest
that would make it inappropriate, in the reasonable opinion of counsel to the
indemnified person, for the same counsel to represent both the indemnified
person and such indemnifying person or any affiliate or associate thereof, the
indemnified person shall be entitled to retain its own counsel at the expense of
such indemnifying person; provided, however, that no indemnifying person shall
be responsible for the fees and expenses of more than one separate counsel
(together with appropriate local counsel) for all indemnified parties (unless in
the reasonable judgment of an indemnified party, there exists a conflict of
interest between such indemnified person and any other indemnified person, in
which case the indemnifying person shall be obligated to pay the reasonable fees
and expenses of additional counsel). In no event shall any indemnifying person
be liable in respect of any amounts paid in settlement of any action unless the
indemnifying person shall have approved the terms of such settlement; provided
that such consent shall not be unreasonably withheld. No indemnifying person
shall, without the prior written consent of the indemnified person, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified person is or could have been a party and indemnification could have
been sought hereunder by such indemnified person, unless such settlement
includes an unconditional release of such indemnified person from all liability
on claims that are the subject matter of such proceeding.
(iv) If the indemnification provided for in this
Section 7.3 is unavailable to or insufficient to hold harmless an indemnified
party under subsection (a) or (b) above in respect of any losses, claims,
damages or liabilities (or actions or proceedings in respect thereof) referred
to therein, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is appropriate
to reflect the relative fault of the Company on the one hand and the Investors
on the other in connection with the statements or omissions or other matters
which resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable considerations. The
relative fault shall be determined by reference to, among other things, in the
case of an untrue statement, whether the untrue statement relates to information
supplied by the Company on the one hand or an Investor on the other and the
parties' relative intent, knowledge, access to information and
13.
<PAGE> 15
opportunity to correct or prevent such untrue statement. The Company and the
Investors agree that it would not be just and equitable if contribution pursuant
to this subsection (d) were determined by pro rata allocation (even if the
Investors were treated as one entity for such purpose) or by any other method of
allocation which does not take into account the equitable considerations
referred to above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this subsection (d), no Investor
shall be required to contribute any amount in excess of the amount by which the
gross amount received by the Investor from the sale of the Shares to which such
loss relates exceeds the amount of any damages which such Investor has otherwise
been required to pay by reason of such untrue statement. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Investors' obligations in this
subsection to contribute are several in proportion to their sales of Shares to
which such loss relates and not joint.
(v) The parties to this Agreement hereby
acknowledge that they are sophisticated business persons who were represented by
counsel during the negotiations regarding the provisions hereof including,
without limitation, the provisions of this Section 7.3, and are fully informed
regarding said provisions. They further acknowledge that the provisions of this
Section 7.3 fairly allocate the risks in light of the ability of the parties to
investigate the Company and its business in order to assure that adequate
disclosure is made in the Registration Statement as required by the Act and the
Exchange Act. The parties are advised that federal or state public policy as
interpreted by the courts in certain jurisdictions may be contrary to certain of
the provisions of this Section 7.3, and the parties hereto hereby expressly
waive and relinquish any right or ability to assert such public policy as a
defense to a claim under this Section 7.3 and further agree not to attempt to
assert any such defense.
7.4 TERMINATION OF CONDITIONS AND OBLIGATIONS. The conditions
precedent imposed by Section 5 or this Section 7 upon the transferability of the
Shares shall cease and terminate as to any particular number of the Shares when
such Shares shall have been effectively registered under the Securities Act and
sold or otherwise disposed of in accordance with the intended method of
disposition set forth in the Registration Statement covering such Shares or at
such time as an opinion of counsel satisfactory to the Company shall have been
rendered to the effect that such conditions are not necessary in order to comply
with the Securities Act.
7.5 INFORMATION AVAILABLE. So long as the Registration Statement
is effective covering the resale of Shares owned by the Investor, the Company
will furnish to the Investor:
(a) as soon as practicable after it is available, one copy
of (i) its Annual Report to Stockholders (which Annual Report shall contain
financial statements audited in accordance with generally accepted accounting
principles by a national firm of certified public accountants) and (ii) if not
included in substance in the Annual Report to Stockholders, its Annual Report on
Form 10-K (the foregoing, in each case, excluding exhibits);
14.
<PAGE> 16
(b) upon the reasonable request of the Investor, all
exhibits excluded by the parenthetical to subparagraph (a)(ii) of this Section
7.5 as filed with the SEC and all other information that is made available to
shareholders; and
(c) upon the reasonable request of the Investor, an
adequate number of copies of the Prospectuses to supply to any other party
requiring such Prospectuses; and the Company, upon the reasonable request of the
Investor, will meet with the Investor or a representative thereof at the
Company's headquarters to discuss all information relevant for disclosure in the
Registration Statement covering the Shares and will otherwise cooperate with any
Investor conducting an investigation for the purpose of reducing or eliminating
such Investor's exposure to liability under the Securities Act, including the
reasonable production of information at the Company's headquarters; provided,
that the Company shall not be required to disclose any confidential information
to or meet at its headquarters with any Investor until and unless the Investor
shall have entered into a confidentiality agreement in form and substance
reasonably satisfactory to the Company with the Company with respect thereto.
8. NOTICES. All notices, requests, consents and other communications
hereunder shall be in writing, shall be mailed (A) if within domestic United
States by first-class registered or certified airmail, or nationally recognized
overnight express courier, postage prepaid, or by facsimile, or (B) if delivered
from outside the United States, by International Federal Express or facsimile,
and shall be deemed given (i) if delivered by first-class registered or
certified mail domestic, three business days after so mailed, (ii) if delivered
by nationally recognized overnight carrier, one (1) business day after so
mailed, (iii) if delivered by International Federal Express, two (2) business
days after so mailed, (iv) if delivered by facsimile, upon electric confirmation
of receipt and shall be delivered as addressed as follows:
(a) if to the Company, to:
Amylin Pharmaceuticals, Inc.
9373 Towne Centre Drive
San Diego, California 92121
Attn: Nancy K. Dahl
Vice President and General Counsel
Phone: (858) 642-7271
Telecopy: (858) 552-1939
(b) with a copy mailed to:
Cooley Godward LLP
4365 Executive Drive, Suite 1100
San Diego, CA 92121
Attn: Thomas A. Coll
Phone: (858) 550-6013
Telecopy: (858) 453-3555
15.
<PAGE> 17
(c) if to the Investor, at its address on the Signature
Page hereto, or at such other address or addresses as may have been furnished to
the Company in writing.
9. CHANGES. This Agreement may not be modified or amended except
pursuant to an instrument in writing signed by the Company and the Investor.
10. HEADINGS. The headings of the various sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed to
be part of this Agreement.
11. SEVERABILITY. In case any provision contained in this Agreement
should be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby.
12. GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the internal laws of the State of California, without giving
effect to the principles of conflicts of law.
13. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute but one instrument, and shall become effective
when one or more counterparts have been signed by each party hereto and
delivered to the other parties.
14. CONFIDENTIAL DISCLOSURE AGREEMENT. Notwithstanding any provision of
this Agreement to the contrary, any confidential disclosure agreement previously
executed by the Company and the Investor in connection with the transactions
contemplated by this Agreement shall remain in full force and effect in
accordance with its terms following the execution of this Agreement and the
consummation of the transactions contemplated hereby.
16.
<PAGE> 18
EXHIBIT A
AMYLIN PHARMACEUTICALS, INC.
STOCK CERTIFICATE QUESTIONNAIRE
Pursuant to Section 5 of the Agreement, please provide us with the
following information:
1. The exact name that your Shares are to be _______________________
registered in (this is the name that will appear
on your stock certificate(s)). You may use a
nominee name if appropriate:
2. The relationship between the Investor and the _______________________
registered holder listed in response to item 1
above:
3. The mailing address of the registered holder _______________________
listed in response to item 1 above:
4. The Social Security Number or Tax _______________________
Identification Number of the registered holder
listed in the response to item 1 above:
A-1.
<PAGE> 19
EXHIBIT B
AMYLIN PHARMACEUTICALS, INC.
INVESTOR QUESTIONNAIRE
(ALL INFORMATION WILL BE TREATED CONFIDENTIALLY)
To: Amylin Pharmaceuticals, Inc.
This Investor Questionnaire ("Questionnaire") must be completed by each
potential investor in connection with the offer and sale of the shares of the
common stock, par value $0.001 per share, of Amylin Pharmaceuticals, Inc. (the
"Securities"). The Securities are being offered and sold by Amylin
Pharmaceuticals, Inc. (the "Corporation") without registration under the
Securities Act of 1933, as amended (the "Act"), and the securities laws of
certain states, in reliance on the exemptions contained in Section 4(2) of the
Act and on Regulation D promulgated thereunder and in reliance on similar
exemptions under applicable state laws. The Corporation must determine that a
potential investor meets certain suitability requirements before offering or
selling Securities to such investor. The purpose of this Questionnaire is to
assure the Corporation that each investor will meet the applicable suitability
requirements. The information supplied by you will be used in determining
whether you meet such criteria, and reliance upon the private offering exemption
from registration is based in part on the information herein supplied.
This Questionnaire does not constitute an offer to sell or a
solicitation of an offer to buy any security. Your answers will be kept strictly
confidential. However, by signing this Questionnaire you will be authorizing the
Corporation to provide a completed copy of this Questionnaire to such parties as
the Corporation deems appropriate in order to ensure that the offer and sale of
the Securities will not result in a violation of the Act or the securities laws
of any state and that you otherwise satisfy the suitability standards applicable
to purchasers of the Securities. All potential investors must answer all
applicable questions and complete, date and sign this Questionnaire. Please
print or type your responses and attach additional sheets of paper if necessary
to complete your answers to any item.
A. BACKGROUND INFORMATION
Name:
---------------------------------------------------------------------------
Business Address:
---------------------------------------------------------------
(Number and Street)
- --------------------------------------------------------------------------------
(City) (State) (Zip Code)
Telephone Number: ( )
------------------------------------------------------
Residence Address:
--------------------------------------------------------------
(Number and Street)
- --------------------------------------------------------------------------------
(City) (State) (Zip Code)
Telephone Number: ( )
------------------------------------------------------
If an individual:
Age: Citizenship: Where registered to vote:
------ ---------- ----------
If a corporation, partnership, limited liability company, trust or other entity:
Type of entity:
-----------------------------------------------------------------
State of formation: Date of formation:
-------------- ----------------
Social Security or Taxpayer Identification No.
----------------------------------
Send all correspondence to (check one): Residence Address
----
Business Address
----
B-1.
<PAGE> 20
B. STATUS AS ACCREDITED INVESTOR
The undersigned is an "accredited investor" as such term is defined in
Regulation D under the Act, as at the time of the sale of the Securities the
undersigned falls within one or more of the following categories (Please initial
one or more, as applicable):(1)
_____(1) a bank as defined in Section 3(a)(2) of the Act, or a savings and loan
association or other institution as defined in Section 3(a)(5)(A) of the Act
whether acting in its individual or fiduciary capacity; a broker or dealer
registered pursuant to Section 15 of the Securities Exchange Act of 1934; an
insurance company as defined in Section 2(13) of the Act; an investment company
registered under the Investment Corporation Act of 1940 or a business
development company as defined in Section 2(a)(48) of that Act; a Small Business
Investment Corporation licensed by the U.S. Small Business Administration under
Section 301(c) or (d) of the Small Business Investment Act of 1958; a plan
established and maintained by a state, its political subdivisions, or any agency
or instrumentality of a state or its political subdivisions for the benefit of
its employees, if such plan has total assets in excess of $5,000,000; an
employee benefit plan within the meaning of the Employee Retirement Income
Security Act of 1974 if the investment decision is made by a plan fiduciary, as
defined in Section 3(21) of such Act, which is either a bank, savings and loan
association, insurance company, or registered investment adviser, or if the
employee benefit plan has total assets in excess of $5,000,000 or, if a
self-directed plan, with the investment decisions made solely by persons that
are accredited investors;(1)
_____(2) a private business development company as defined in Section 202(a)(22)
of the Investment Adviser Act of 1940;
_____(3) an organization described in Section 501(c)(3) of the Internal Revenue
Code of 1986, as amended, corporation, Massachusetts or similar business trust,
or partnership, not formed for the specific purpose of acquiring the Securities
offered, with total assets in excess of $5,000,000;
_____(4) a natural person whose individual net worth, or joint net worth with
that person's spouse, at the time of such person's purchase of the Securities
exceeds $1,000,000;
_____(5) a natural person who had an individual income in excess of $200,000 in
each of the two most recent years or joint income with that person's spouse in
excess of $300,000 in each of those years and has a reasonable expectation of
reaching the same income level in the current year;
_____(6) a trust, with total assets in excess of $5,000,000, not formed for the
specific purpose of acquiring the Securities offered, whose purchase is directed
by a sophisticated person as described in Rule 506(b)(2)(ii) of Regulation D;
and
_____(7) an entity in which all of the equity owners are accredited investors
(as defined above).
- ----------
(1) As used in this Questionnaire, the term "net worth" means the excess of
total assets over total liabilities. In computing net worth for the purpose of
subsection (4), the principal residence of the investor must be valued at cost,
including cost of improvements, or at recently appraised value by an
institutional lender making a secured loan, net of encumbrances. In determining
income, the investor should add to the investor's adjusted gross income any
amounts attributable to tax exempt income received, losses claimed as a limited
partner in any limited partnership, deductions claimed for depiction,
contributions to an IRA or KEOGH retirement plan, alimony payments, and any
amount by which income from long-term capital gains has been reduced in arriving
at adjusted gross income.
B-2.
<PAGE> 21
C. REPRESENTATIONS
The undersigned hereby represents and warrants to the Corporation as follows:
1. Any purchase of the Securities would be solely for the account of the
undersigned and not for the account of any other person or with a view to any
resale, fractionalization, division, or distribution thereof.
2. The information contained herein is complete and accurate and may be
relied upon by the Corporation, and the undersigned will notify the Corporation
immediately of any material change in any of such information occurring prior to
the closing, if any, with respect to the purchase of Securities by the
undersigned or any co-purchaser.
3. There are no suits, pending litigation, or claims against the
undersigned that could materially affect the net worth of the undersigned as
reported in this Questionnaire.
4. The undersigned acknowledges that there may occasionally be times
when the Corporation, based on the advice of its counsel, determines that it
must suspend the use of the Prospectus forming a part of the Registration
Statement (as such terms are defined in the Stock Purchase Agreement to which
this Questionnaire is attached) until such time as an amendment to the
Registration Statement has been filed by the Company and declared effective by
the Securities and Exchange Commission or until the Corporation has amended or
supplemented such Prospectus. The undersigned is aware that, in such event, the
Securities will not be subject to ready liquidation, and that any Securities
purchased by the undersigned would have to be held during such suspension. The
overall commitment of the undersigned to investments which are not readily
marketable is not excessive in view of the undersigned's net worth and financial
circumstances, and any purchase of the Securities will not cause such commitment
to become excessive. The undersigned is able to bear the economic risk of an
investment in the Securities.
5. In addition to reviewing the Corporation's Confidential Offering
Memorandum, the undersigned has carefully considered the potential risks
relating to the Corporation and a purchase of the Securities, and fully
understands that the Securities are speculative investments which involve a high
degree of risk of loss of the undersigned's entire investment. Among others, the
undersigned has carefully considered each of the risks described under the
heading "Risk Factors" in the Corporation's most recent annual report on Form
10-K.
IN WITNESS WHEREOF, the undersigned has executed this Questionnaire this _____
day of _____________, 2000, and declares under oath that it is truthful and
correct.
Print Name
By:
------------------------------------------
Signature
Title:
---------------------------------------
(required for any purchaser that is
a corporation, partnership, trust or
other entity)
B-3.
<PAGE> 22
EXHIBIT C
AMYLIN PHARMACEUTICALS, INC.
CERTIFICATE OF SUBSEQUENT SALE
ChaseMellon Shareholder Services
RE: Sale of Shares of Common Stock of Amylin Pharmaceuticals, Inc.
(the "Company") pursuant to the Company's Prospectus dated
_______________, 2000 (the "Prospectus")
Dear Sir/Madam:
The undersigned hereby certifies, in connection with the sale of shares
of Common Stock of the Company included in the table of Selling Shareholders in
the Prospectus, that the undersigned has sold the Shares pursuant to the
Prospectus and in a manner described under the caption "Plan of Distribution" in
the Prospectus and that such sale complies with all applicable securities laws,
including, without limitation, the Prospectus delivery requirements of the
Securities Act of 1933, as amended.
Selling Shareholder (the beneficial owner):
-----------------------------
Record Holder (e.g., if held in name of nominee):
-----------------------
Restricted Stock Certificate No.(s):
------------------------------------
Number of Shares Sold:
--------------------------------------------------
Date of Sale:
-----------------------------------------------------------
In the event that you receive a stock certificate(s) representing more
shares of Common Stock than have been sold by the undersigned, then you should
return to the undersigned a newly issued certificate for such excess shares in
the name of the Record Holder and BEARING A RESTRICTIVE LEGEND. Further, you
should place a stop transfer on your records with regard to such certificate.
Very truly yours,
By:
-------------------------------------
Print Name:
-----------------------------
Title:
----------------------------------
Dated:
-------------------
cc: Legal Department
Amylin Pharmaceuticals, Inc.
9373 Towne Centre Drive
San Diego, California 92121
<PAGE> 23
SCHEDULE OF PURCHASERS
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
COMMON STOCK TO BE ISSUED
STOCKHOLDER FOR INVESTMENT
- --------------------------------------------------------------------------------
<S> <C>
Allen Andersson 1,333,334
Ralph M. D'Annucci 50,000
Clipperbay & Co., as Custodian for SMALLCAP 1,845,833
World Fund, Inc.
Rescueboat & Co., as Custodian for The 3,000,000
Growth Fund of America, Inc.
Pirate Ship & Co., as Custodian for Invesco 325,000
Global Health Sciences Fund
SeaLion & Co., as Custodian for Invesco 295,000
Health Sciences Fund
Above Anchor & Co., as Custodian for Invesco 8,000
VIF - Health Sciences Fund
"Roytor & Co.", in Trust for State Street 40,000
Trust Co. Canada Fund #ZM 75, as Custodian
for AIM Funds Management Inc., on behalf of
AIM Global Health Sciences Class of AIM
Global Fund Inc.
"Roytor & Co.", in Trust for State Street 82,000
Trust Co. Canada Fund #KG 56, as Custodian
for AIM Funds Management Inc., on behalf of
AIM Global Health Sciences Fund
Deerfield Partners L.P. 740,000
Deerfield International Limited 260,000
Rumsfeld Family Trust 10,417
Donald H. Rumsfeld 10,417
MCP Global Corp. Ltd. 100,000
United Capital Management Inc. 100,000
Deltec Asset Management Corporation 50,000
Narragansett I, LP 60,833
Narragansett Offshore, Ltd. 22,500
TOTAL 8,333,334
</TABLE>
<PAGE> 1
EXHIBIT 5.1
[COOLEY GODWARD LLP LETTERHEAD]
March 27, 2000
Amylin Pharmaceuticals, Inc.
9373 Towne Centre Drive
San Diego, CA 92121
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by Amylin Pharmaceuticals, Inc., a Delaware corporation (the
"Company"), of a Registration Statement on Form S-3 (the "Registration
Statement") including a related prospectus filed with the Registration Statement
(the "Prospectus"), covering the registration of up to 8,333,334 shares of the
Common Stock, $.001 par value, of the Company (the "Shares") on behalf of
certain selling stockholders.
In connection with this opinion, we have examined the Registration Statement and
related Prospectus, the Company's Amended and Restated Certificate of
Incorporation and Bylaws, as amended, and such other records, documents,
certificates, memoranda and other instruments as we deem necessary as a basis
for this opinion. We have assumed the genuineness and authenticity of all
documents submitted to us as originals, the conformity to originals of all
documents submitted to us as copies thereof and the due execution and delivery
of all documents where due execution and delivery are a prerequisite to the
effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of the opinion
that the Shares are validly issued, fully paid and nonassessable.
We consent to the reference to our firm under the caption "Legal Matters" in the
Prospectus included in the Registration Statement and to the filing of this
opinion as an exhibit to the Registration Statement.
Very truly yours,
Cooley Godward LLP
/s/ Thomas A. Coll
Thomas A. Coll
<PAGE> 1
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of Amylin
Pharmaceuticals, Inc. for the registration of 8,333,334 shares of its common
stock and to the incorporation by reference therein of our report dated
February 22, 2000, with respect to the consolidated financial statements and
schedules of Amylin Pharmaceuticals, Inc. included in its Annual Report (Form
10-K) for the year ended December 31, 1999, filed with the Securities and
Exchange Commission.
Ernst & Young LLP
San Diego, California
March 24, 2000
